General Terms & Conditions

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These online General Terms & Conditions, hereinafter referred to as the “Agreement,” are entered into between Talon.One and Customer and governs the Customer’s use of the Talon.One software-as-a-service products upon the execution of an Order Form.

“Talon.One” and “Customer” refer to the respective entities as defined in the Order Form.

All other capitalized terms are defined in Section 1 of this Agreement.

PREAMBLE:

Talon.One is in the business of providing certain software as a service subscription services. Customer wishes to procure such services from Talon.One, and Talon.One wishes to provide such services from time to time, in each case upon the terms and conditions set forth in this Agreement. Therefore, in consideration of the mutual promises and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 9 (LIMITATION OF LIABILITY).

1. DEFINITIONS

1.1 Affiliate means any corporation, partnership, or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by, or under common control with a Party. For purposes of this definition, “control” means the direct possession of a majority of the outstanding voting securities of an entity.

1.2 Beta Services means any features, functionality, or services that Talon.One makes available to Customer that are labeled as "beta," "preview," "early access," or "non-production," or are otherwise identified as experimental, untested, or not fully supported.

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

1.4 Confidential Information means all non-public, confidential and/or proprietary information (in whatever form and whether or not marked as confidential) which is disclosed by or on behalf of the Discloser, including but not limited to tangible, intangible, visual, electronic, present, or future information such as:a) the terms of this Agreement and any agreement entered into between the Parties and the discussions, negotiations and proposals related thereto;b) all confidential and/or proprietary information relating to: (i) the business, assets, affairs, customers, clients, suppliers, plans, intentions, or market opportunities, pricing information and research information of the Discloser or of any of the Discloser’s group companies; (ii) the Discloser’s patented and unpatented inventions, ideas, methods and discoveries, trade secrets, know-how, unpublished patent applications, and other confidential intellectual property; and (iii) technical information, including research, development, procedures, algorithms, data, designs, know-how, specifications, base and source code, the operations, processes, product information trade secrets and software of the Discloser, or of any of the Discloser’s group companies;c) any and all information, notes, findings, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations, and other materials prepared by or for the Recipient that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing; andd) any other information that is identified as being of a confidential or proprietary nature or that the Recipient/receiving party would consider confidential if disclosed by them to another party.

e) The terms and conditions of this Agreement are the Confidential Information of both Parties, the pricing and other terms reflected in all Order Forms hereunder are the Confidential Information of Talon.One, and the Customer Data is the Confidential Information of Customer.

f) Confidential Information (except for Usage Data) shall not include any information that: 

(i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or any third party; 

(ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; 

(iii) was independently developed by the Receiving Party; or 

(iv) is received from a third Party without breach of any obligation owed to the Disclosing Party.

1.5 Customer Data means all data or information made available by the Customer or its Users to Talon.One or otherwise provided by Customer or its Users in connection with the provision of the Services, but not including Usage Data.

1.6 Customer Default has the meaning set out in 5.5.

1.7 Data Processing Agreement means the agreement regarding the processing of personal data set forth in Exhibit C.

1.8 Discloser or Disclosing Party means the party that discloses Confidential Information. 

1.9 Documentation shall mean the online documentation for the Subscription Service, accessible via https://docs.talon.one/, as updated from time to time.

1.10 Force Majeure Event includes, without limitation, strikes, illness, virus, epidemics, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.

1.11 Intellectual Property Rights means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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.

1.12 Order means the Customer's order for Subscription Service via an Order Form.

1.13 Order Form means each Talon.One Order Form, statement of work, or similar ordering document signed by duly authorized representatives of both Parties which references this Agreement, identifies the specific Subscription Service ordered by Customer from Talon.One, sets forth the prices for the Subscription Service, and contains other applicable terms and conditions.

1.14 Prohibited Data means any a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; b) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); c) credit, debit, or other payment card data or financial account information, including bank account numbers; d) credentials granting access to an online account; e) social security numbers, driver’s license numbers, or other government identification numbers; and f) other data or information subject to regulation or protection under applicable laws.  

1.15 Recipient or Receiving Party is the party that is receiving Confidential Information.

1.16 Service(s) means the Subscription Service and the Beta Services, as applicable.

1.17 Subscription Entitlement(s) means the limits, rights and permissions a customer receives based on their subscription plan in an Order Form.

1. 18 Subscription Service means Talon.One’s proprietary subscription-based software solution set forth and described on the applicable Order Form.

1.19 Subscription Term means the set term designated on an Order Form.

1.20 Talon.One Data means all data or information made available by Talon.One to Customer in connection with the Customer’s use of the Services.

1.21 Third Party Applications means online, Web-based applications or services and offline software products that are provided by third parties, and interoperate with the Subscription Service.

1.22 Third-Party Claim means a claim, action, allegation, or other dispute brought by a person, entity, or other party that is: (a) not a contracting party to this Agreement or an Order governed by this Agreement; or (b) is an Affiliate of a contracting party to this Agreement (except in the case of a Customer Affiliate that enters into a contract or Order directly with Provider as described in Section 2.3 and such Order is governed by this Agreement). 

1.23 Usage Data means anonymized and aggregated information or data, collected and owned by Talon.One, that a) tracks Customer’s use of the Subscription Service, and b) tracks the performance of the Subscription Service.

1.24 Users means individuals who are authorized by the Customer to use the Services, and, with respect to the Subscription Service, who have been supplied passwords by the Customer (or by Talon.One at the Customer’s request). Users may consist of any employee of the Customer or its Affiliates and any independent contractor of the Customer or its Affiliates.

2. TALON.ONE SERVICES

2.1 Talon.One Responsibilities. Talon.One shall make the Subscription Service available during a Subscription Term solely for use by Customer and the Users in accordance with the terms and conditions of this Agreement, the applicable Order Form (Exhibit A), the Service Level Agreement ("SLA"; Exhibit B) and, where applicable, the Data Processing Agreement ("DPA"; Exhibit C). 

2.2 License Grant. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set forth on the applicable Order Form, Talon.One hereby grants to the Customer, solely during the Subscription Term, a non-exclusive, non-transferable (except as set forth in Section 2.3) license to access and use the Subscription Service solely for the Customer’s internal business purposes. This license is restricted to use by Customer and its Users and does not include the right to use the Subscription Service on behalf of any third party. 

2.3 Affiliates. Customer’s Affiliates may use the Subscription Service purchased by Customer without signing an Order Form, if Customer sets up individuals using the Subscription Service on behalf of such Affiliate as Users and in accordance with Section 2.7.2. Customer Affiliates may also purchase and use subscriptions to the Subscription Service subject to the terms of this Agreement by entering into an Order Form with Talon.One referencing this Agreement, in which case this Agreement, as amended from time to time, shall apply to such Customer Affiliates, and such Affiliates shall be deemed the “Customer” as contemplated herein. Unless stated otherwise on an Order Form, Customer and its Affiliates who sign Order Forms under this Agreement shall be deemed to be jointly liable for a breach of this Agreement.

2.4 Third Party Applications. The Subscription Service may interact with and access Customer and third party applications and related information used by Customer in connection with the Subscription Service. Customer shall be responsible for making any such Third Party Applications, data sources, Customer Data and information available to Talon.One and the Subscription Service as necessary to use the Subscription Service as contemplated in this Agreement, including, without limitation, obtaining all required access and credentials. Customer shall be solely responsible for ensuring compliance with third party terms of use, privacy policies and contractual obligations in making such Third Party Applications, data sources, Customer Data and information available to Talon.One.

2.5 Beta Services. Talon.One may, from time-to-time, offer Customer the opportunity to access and use certain Beta Services for evaluation purposes only. Beta Services may be unstable, incomplete, and contain errors, and Customer acknowledges that any access or use of the Beta Services is at Customer’s sole risk and peril. Talon.One makes no representations or warranties regarding Beta Services, which are provided "AS IS" and with all faults. Notwithstanding anything to the contrary in this Agreement, Talon.One shall have no liability whatsoever for any damage, liability, loss, or injury arising from or related to Beta Services, regardless of the cause or theory of liability, except for injuries to life, limb or health and in case of gross fault . Talon.One may modify, suspend, or terminate Beta Services at any time without notice or liability.

2.6 Third Parties. Talon.One is entitled to use third parties (e.g. subcontractors, freelancer) as vicarious agents in order to carry out and/or fulfill all or part of its contractual obligations, provided that Talon.One shall be responsible and liable to the Customer for all acts and omissions of such third parties as though they were the acts or omissions of Talon.One

2.7 Updates & Customer Responsibilities.

2.7.1 Updates. In order to ensure the proper functioning of the Services and/ or for the development of new product lines, Talon.One reserves the right to make technical changes and improvements to the Services, provided that the changes will not materially diminish the functionality of the Services.

2.7.2 Customer Responsibilities. a) The Customer is responsible for procuring and maintaining the network connections that connect the Customer to the Services. b) The Customer agrees: (i) that only authorized Users are permitted to use the Services; (ii) that it is responsible for authorized Users’ actions or failures to act in connection with activities contemplated under this Agreement; (iii) to use the Services in compliance with this Agreement, applicable Order Form(s) and the SLA; and (iv) to otherwise take all commercially reasonable steps to protect the Services from unauthorized use and/or access. c) Customer will not (and will not permit anyone else to) do any of the following:  (i) use the Services or Confidential Information to develop a similar or competing product or service; (ii) reverse engineer, decompile, disassemble, or seek to access the source code of the Services or any related features; (iii) modify or create derivative works of the Services or copy any element of or related features with the Services (other than as authorized in the Documentation); (iv) perform any security integrity review, penetration test, denial of service simulation, or vulnerability scan without prior consent of Talon.One; (v) provide access to or sub-license the Services to a third party other than as authorized by Talon.One under this Agreement (Section 2.3); (vi) except where otherwise set out in the Documentation, send any Prohibited Data to the Services; or (vii) conduct comparative analysis, evaluations or product benchmarks with respect to the Services nor publicly post any analysis or reviews of the Services without Talon.One’s prior written consent.

3. DATA PROTECTION & IP RIGHTS

3.1 Data Protection Laws. Customer and Talon.One are obliged to comply with all applicable data protection laws when using or providing the Subscription Service. Customer authorizes Talon.One to process the data that was provided, or to commission third parties, provided that Talon.One remains liable for all actions or omissions of such third parties, in accordance with this Agreement. If applicable, the Customer hereby commissions Talon.One to process personal data on its behalf by concluding a separate agreement in accordance with the scope and the conditions of Exhibit C “Data Processing Agreement”.

3.2 Proprietary Rights. a) Customer owns and retains: (i) the Customer Data; (ii) Customer’s name, logo and other trademarks; and (iii) all Intellectual Property Rights in and to any of the foregoing. 

b) Talon.One owns and retains: (i) the Services, and all improvements, enhancements or modifications made by any party; (ii) the Usage Data; (iii) any software, applications, inventions or other technology developed by Talon.One in connection with providing the Services; (iv) Talon.One’s name, logo, and other trademarks; and (v) all Intellectual Property Rights in and to any of the foregoing. 

c) Talon.One may use Customer's name verbally and Customer's name and logo in writing to identify Customer as a customer of Talon.One. No rights are granted to either Party hereunder other than expressly set forth herein. Neither party shall have the right to use the name, trademarks, logos, or any other proprietary identifiers of the other party in any advertising or promotional materials, whether printed, electronic, or otherwise, without the prior written consent of the other party.

3.3 Feedback. If Customer provides Talon.One with feedback or suggestions regarding the Services or other Talon.One offerings, Talon.One may use the feedback or suggestions without restrictions.

3.4 Customer Data. The Customer retains ownership of all right, title and interest in and to all Customer Data. During the term of this Agreement, the Customer hereby grants to Talon.One a limited, worldwide, non-exclusive, non-transferable (except as set forth in this Agreement), royalty-free right to use, display, transmit, and distribute the Customer Data as necessary to provide the Services to the Customer.

3.5 Usage Data. Talon.One will have the right to generate Usage Data, and the Parties agree that Talon.One may use Usage Data for any business purpose during or after the term of this Agreement. Talon.One will not distribute Usage Data in a manner that personally identifies Customer, customers of Customer or its Users.

3.6 Security. Talon.One will use appropriate technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of Customer Data in accordance with Exhibit C.

3.7 EU Data Act. To the extent the Services are subject to Regulation (EU) 2023/2854 (the "EU Data Act"), the terms of the Talon.One EU Data Act Addendum, available at www.talon.one/legal/eu-data-act-addendum, are incorporated by reference into this Agreement.

4. CONFIDENTIALITY

4.1 Confidentiality Obligation. During the Term of this Agreement and for a period of two (2) years thereafter, the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and

a) to not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and 

b) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents (“Representatives”) who need such access for purposes consistent with this Agreement and who are subject to written confidentiality obligations with the Receiving Party containing protections no less stringent than those contained herein.

4.2 Permitted Disclosures. Notwithstanding the foregoing, the Receiving Party may disclose

a) any Confidential Information of the Disclosing Party, if and to the extent required by court or government order or otherwise required  by applicable Laws, so long as the Receiving Party notifies the Disclosing Party as soon as possible (if legally  permitted) and cooperates with the Disclosing Party to secure a protective order or otherwise protect the Confidential Information; or 

b) this Agreement 

(i) in response to a request by its auditors relating to the audit  process; or

(ii) in connection with a possible investment, acquisition, divestiture, joint venture, spin-off, strategic operational assessment, or outsourcing transaction, so long as in the case of any disclosure pursuant to this subsection b) (ii) the third-party recipient is not a direct competitor of the other Party and has signed a confidentiality agreement or otherwise has a binding duty of confidentiality with the Party disclosing this Agreement.

4.3 Injunctive Relief. Notwithstanding any other provision of this Agreement, both Parties acknowledge that any use of the Disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the Disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate.  Therefore, both Parties agree that, in addition to any other remedy to which the Disclosing Party may be entitled hereunder, at law or equity, the Disclosing Party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.

4.4 Return or Destruction of Confidential Information. Upon expiration or termination of this Agreement for any reason, each Party, in its capacity as the Receiving Party, shall promptly return to the Disclosing Party or destroy all Confidential Information furnished to the Receiving Party pursuant hereto and shall promptly destroy all materials prepared by the Receiving Party that  include, reflect, or are based on, in whole or in part, Confidential Information furnished to such Receiving Party; provided, however, that the Receiving Party

a) will have no obligation to destroy  or certify the destruction of any backup or residual copies of the Confidential Information that  reside electronically as residuals or on its or a third-party hosting provider’s back-up servers and

b) will be permitted to retain one (1) archival copy of the Confidential Information to comply  with record retention policies and legal, regulatory, or professional obligations; provided that such Confidential Information that remains undestroyed under a) and retained archival material under b) shall remain subject to the confidentiality and non-use provisions of this Agreement. 

In the case of destruction pursuant hereto, an authorized officer of the Receiving Party must promptly certify in writing to the Disclosing Party upon request that all forms of Confidential Information have been destroyed. Notwithstanding the return or destruction of the Confidential Information, each Party will continue to be bound by all applicable obligations of confidentiality and non-use hereunder.

4.5 Prior NDAs. Any previously executed non-disclosure agreement (NDA) shall be deemed superseded and replaced by this newly executed Agreement.

5. FEES & PAYMENT

5.1 Fees. Customer shall pay all fees in accordance with any applicable Order Form(s) (Billing Frequency) and this Section 5. Except as otherwise specified herein or in an Order Form, a) fees are based on the Subscription Entitlement(s) purchased; b) payment obligations are non-cancelable; c) fees paid are non-refundable, except pursuant to Section 6.4 (Termination for Cause); d) the Subscription Entitlement(s) purchased cannot be decreased during the relevant Subscription Term.

5.2 Currency. All Fees are to be paid in the currency stated in the Order Form.

5.3 Invoices. Customer will be invoiced electronically (E-Mail) to the E-Mail address stated on the Order Form and in accordance with the applicable Order Form. Customer is responsible for maintaining complete and accurate billing and contact information.

5.4 Payment. Customer shall pay each invoice as specified in any Order Form(s). Payments shall be made in clear funds to a bank account nominated in writing by Talon.One and without deductions created by bank charges using SWIFT payment instruction "SHA" or "BEN" (i.e. Customer shall choose "OUR"). All amounts due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding.

5.5 Overdue Payments. In the event the Customer's account is 30 days or more overdue (“Customer Default”), then, without limiting Talon.One's remedies under his Agreement, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment, for all amounts not subject to a good faith dispute and Section 5.6 (Payment Dispute). Talon.One reserves the right to prove and assert greater damages due to Customer Default. Interest under this clause 5.5 will accrue each day at 2% a year above the Bank of England base rate from time to time, but at 2% a year for any period when that base rate is below 0%.

5.6 Payment Disputes. Talon.One shall not exercise its rights under Section 5.5 ("Overdue Payments") if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. Any complaints relating to an invoice must be submitted to Talon.One in writing or by email to billing.uk@talon.one within thirty (30) days upon receipt of the respective invoice. If no such complaint has been made within thirty (30) days upon receipt of invoice, the invoice is deemed to have been accepted and Customer shall have waived the right to dispute such amounts.

5.6 Taxes. All fees and charges payable by Customer are exclusive of applicable taxes and duties, including VAT, GST and applicable sales tax. If Customer is legally entitled to an exemption from any sales, use, or similar transaction tax, Customer is responsible for providing Talon.One with legally sufficient tax exemption certificates for each taxing jurisdiction. Talon.One shall apply the tax exemption certificates to charges under Customer’s account occurring after the date Talon.One receive the tax exemption certificates. If any deduction or withholding is required by law, Customer shall notify Talon.One and shall pay Talon.One any additional amounts necessary to ensure that the net amount that Talon.One receives, after any deduction and withholding, equals the amount Talon.One would have received if no deduction or withholding had been required. Additionally, Customer shall provide Talon.One with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.

6. TERM & TERMINATION

6.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all Order Forms entered into hereunder have terminated or expired pursuant to the terms hereof and subject to Section 6.3 (Continued Use) and Section 6.4 (Termination for Cause).

6.2 Term of Subscription. a) Unless the relevant Order Form(s) and/or this Agreement are earlier terminated pursuant to this Agreement, subscriptions to the Subscription Service commence on the Order Form start date and continue for the Subscription Term(s). Unless otherwise set forth in an Order Form, subscriptions shall automatically renew for additional periods equal to the expiring Subscription Terms, unless either Party gives the other notice of non-renewal at least 30 days prior to the end of the relevant Subscription Term. 

b) In the event a Subscription Term automatically renews (each a "Renewal Subscription Term"), Talon.One reserves the right to increase the fees effective as of the first day of the applicable Renewal Subscription Term by giving Customer at least sixty (60) days’ prior to the applicable Renewal Subscription Term. Customer shall have the right to reject such price increase by providing Talon.One with written notice of rejection within thirty (30) days from the date the price increase notice was given. If Customer exercises this right to reject the price increase, the original price in effect during the immediately preceding term shall remain in effect for the renewal term. Notwithstanding anything to the contrary, any discounts granted on any Order Form shall not automatically apply to any Renewal Subscription Term but will expire at the end of any Subscription Term; any other terms in any Order Form remain unchanged.

6. 3 Continued Use. In the absence of automatic renewal or a signed renewal Order Form, upon expiration of the applicable Order Form, Talon.One will cease providing the applicable Subscription Service to Customer. In the event that the Parties are negotiating renewal in good faith, Talon.One may, for a limited period of time, allow Customer to continue to use the Subscription Service hereunder beyond the expiration of such Order Form, and Customer agrees: a) to pay for such use of the Subscription Service in an amount equal to the fees in effect immediately prior to such expiration (Subscription Entitlements and fees prorated for such period), and b) that Talon.One will cease providing the Subscription Service at the end of such period if Customer has not signed a new Order Form.

6.4 Termination for Cause. Either Party may terminate this Agreement and/ or the applicable Order Form(s) hereunder for cause by notice if the other Party:

a) fails to cure a material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice provided that such material breach is curable; or 

b) subject to applicable law, immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. 

6.5 Consequences of Termination. a) If the Agreement is terminated by Talon.One for Customer’s material breach as set forth herein, or by Customer without cause, all fees for the remainder of the then-current Subscription Term under any active Order Form will become immediately due and payable. If the Agreement is terminated by Customer for Talon.One’s material breach as set forth herein, Talon.One will refund any prepaid and unused fees covering the remainder of the Subscription Term after the date of termination, net of any amounts still owed to Talon.One.

b) In any event, Customer shall not be relieved of its obligation to pay any fees accrued or payable to Talon.One prior to the effective date of termination. Except where an exclusive remedy is provided, exercising a remedy under this Agreement does not limit other remedies a party may have.

c) Termination of the Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination of the Agreement, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.

d) Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination of the Agreement shall remain in full force and effect.

7. WARRANTIES

7.1 Mutual Warranties. Each Party represents and warrants that a) it has the legal power and authority to enter into this Agreement, and b) it will use industry-standard measures to avoid introducing viruses into the Subscription Service.

7.2 Talon.One Warranty. Talon.One warrants that during the Subscription Term that the Subscription Service will conform, in all material respects, with the Documentation. 

7.3 Customer Warranty. The Customer represents and warrants that he will use the Subscription Service exclusively and explicitly within his commercial and/or freelance professional activity. In case of a breach of this representation and warranty Talon.One is entitled to suspend the Subscription Service and to terminate the Agreement with the Customer without notice and with immediate effect.

7.4 SLA. Talon.One will provide the Subscription Service in accordance with the Service Level Agreement attached as Exhibit B hereto.

7.5 No Other Warranty. EXCEPT AS STATED IN THIS SECTION, TALON.ONE PROVIDES THE SERVICES ON AN “AS IS” BASIS. TALON.ONE DOES NOT REPRESENT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED. THE WARRANTIES STATED IN SECTION 7.2 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY TALON.ONE. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TALON.ONE MAKES NO WARRANTY REGARDING FEATURES OR SERVICES PROVIDED BY THIRD PARTIES.

8. INDEMNIFICATION

8.1 Talon.One Indemnification. Subject to this Section 8, Talon.One will defend Customer, from and against any claim, demand, suit or proceeding made or brought against any Talon.One Covered Claims and will indemnify the Customer from any damages (including reasonable attorney fees and costs) finally awarded against Customer as a result of, or for amounts paid by under a court-approved settlement of, a Talon.One Covered Claim.

8.2 Customer Indemnification. Subject to this Section 8, Customer, at its own expense, will defend Talon.One from and against any Customer Covered Claims and will indemnify Talon.One from and against any damages or costs finally awarded against Talon.One (including reasonable attorney fees) or agreed in settlement by Customer resulting from Customer Covered Claims.

8.3 Indemnification Definitions. The following definitions shall apply unless modified in an Addendum to this Agreement:

a) "Talon.One Covered Claim" means a Third Party Claim that the Subscription Service, when used by Customer as authorized in this Agreement, infringes or misappropriates a third party's intellectual property rights.

b) "Customer Covered Claim" means a Third Party Claim (i) alleging that the Customer Data or the combination of Customer Data with other applications, content, or processes, or any use thereof, infringes the privacy, intellectual property rights or proprietary rights of others, or has caused harm to a third party, (ii) or to the extent related to or arising out of or attributable to Customer’s misuse of the Services.

8.4 Mitigation Efforts. If a Talon.One Covered Claim is brought or is likely, in Talon.One’s sole opinion, to be brought, Talon.One may, at its option and expense 

a) obtain the right for Customer to continue using the Services; 

b) replace or modify the affected Services so that they become non-infringing; or

c) upon notice to Customer, terminate this Agreement or Customer’s use of the affected Services, provided that in the case of c) Talon.One promptly refunds to Customer the prorated portion of any pre-paid, unused fees for the terminated portion of the Subscription Term calculated from the effective date of termination.

8.5 Exceptions. Talon.One’s obligations in this Section 8 do not cover claims to the extent such claims arise from:

a) any products, services, technology, materials or data not created or provided by Talon.One (including without limitation any Customer Data),

b) any part of the Services made in whole or in part in accordance with Customer Documentation,

c) any modifications made after delivery by Talon.One,

d) where Customer continues the allegedly infringing activity after being notified thereof or after being informed of misuse that would have avoided the alleged infringement, or

e) Customer’s use of the Services is not strictly in accordance with this Agreement or any Documentation.

8.6 Indemnification Procedure. Each Party’s obligation to indemnify the other party is conditioned on the Party seeking indemnification: 

a) promptly notifying the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, 

b) allowing the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim that requires the indemnified Party to admit fault without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed), and 

c) giving the indemnifying Party reasonable assistance in the defense and settlement of any claim, suit or proceeding for which indemnity is claimed.

8.7 Sole Remedy. This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

9. LIABILITY & LIMITATION ON LIABILITY

THE CUSTOMERS ATTENTION IS PARTICULARLY DRAWN TO THIS SECTION:

9.1 CONSEQUENTIAL DAMAGES WAIVER. EXCEPT FOR A PARTY'S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, NEITHER PARTY WILL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR LOSS OF PROFITS OR FOR:A) ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES;B) DAMAGES FOR LOSS OF BUSINESS, PROFITS OR REVENUES, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND/OR DATA (IN EACH CASE WHETHER DIRECT OR INDIRECT) IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES, OR THE PERFORMANCE OF ANY OTHER OBLIGATIONS UNDER THIS AGREEMENT, EVEN IF IT IS AWARE OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES.

9.2 GENERAL CAP. SUBJECT TO THE TERMS OF THIS AGREEMENT, EACH PARTY'S ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE GENERAL CAP.

9.3 EXCEPTIONS AND ENHANCED CAP. SECTIONS 9.1 (CONSEQUENTIAL DAMAGES WAIVER) AND 9.2 (GENERAL CAP) WILL NOT APPLY TO ENHANCED CLAIMS OR UNCAPPED CLAIMS. FOR ALL ENHANCED CLAIMS, EACH PARTY'S ENTIRE LIABILITY WILL NOT EXCEED THE ENHANCED CAP.THE PROVISIONS OF THIS AGREEMENT ALLOCATE RISKS BETWEEN THE PARTIES. THE PRICING SET FORTH IN EACH ORDER FORM REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.

9.4 NATURE OF CLAIMS. THE WAIVERS AND LIMITATIONS IN THIS SECTION 9 APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.

9.5 LIABILITY DEFINITIONS. THE FOLLOWING DEFINITIONS APPLY UNLESS MODIFIED:A) “GENERAL CAP” MEANS AMOUNTS PAID OR PAYABLE BY CUSTOMER TO PROVIDER UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE FIRST INCIDENT GIVING RISE TO LIABILITY.B) “ENHANCED CAP” MEANS TWO TIMES (2X) THE GENERAL CAP.C) “UNCAPPED CLAIMS” MEANS (I) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8; (II) LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (III) CUSTOMER’S OBLIGATION TO PAY ALL FEES AND EXPENSES WHEN DUE; AND (IV) LIABILITIES THAT CANNOT BE LIMITED BY APPLICABLE LAW.D) “ENHANCED CLAIMS” MEANS TALON.ONE’S BREACH OF SECTION 3.6 (SECURITY) OR EITHER PARTY’S BREACH OF SECTION 3.1 THAT LEADS TO A BREACH OF CUSTOMER’S PERSONAL INFORMATION (DPA).

10. GENERAL

10.1 Force Majeure. Either party shall be excused from failures or delays in delivery or performance under this Agreement to the extent such failure or delay is, directly or indirectly, attributable to causes beyond its reasonable control and such cause makes performance or delivery commercially impractical.  Upon the occurrence of a Force Majeure Event:  (a) the time of delivery or performance and time of payment shall be extended for a period of time equal to the time lost by reason of such Force Majeure Event; (b) the non-performing party shall promptly notify the other party of the circumstances hindering its performance and of its plans and efforts to implement a work-around, in which case the non-performing party shall be excused from any further performance or observance of the affected obligations for as long as (i) such circumstances prevail, and (ii) the non-performing party continues to attempt to recommence performance or observance to the greatest extent possible without delay. 

In the event that a Force Majeure Event prevents performance of any part of this Agreement during a consecutive period of more than one (1) month, both parties shall be entitled to terminate the Agreement in whole or in part without any liability towards the other party.

10.2 Relationship of the Parties. Talon.One and the Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.

10.3 No Third Party Rights.

a) Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.

b) The rights of the parties to rescind or vary the Agreement are not subject to the consent of any other person.

10.4 Notices.

a) All notices under this Agreement shall be sent in writing. 

b) All notices will be deemed given upon: i) personal delivery; ii) 3 days after sending via certified, registered mail, or deposit with a globally recognized courier; or iii) email delivery as set out  below.

c) Customer is responsible for providing Talon.One with the most current email and postal address and updating it as applicable. 

d) Notices by email to Talon.One shall be sent to legal@talon.one; notices to Customer shall be sent to the email address set out in the Order Form (Legal Notices). Either Party may update its address with notice to the other. Talon.One may also send operational notices to Customer by email or through the Subscription Service. Customer may also send operational notices to Talon.One to the respective customer success manager (Operational Notices). 

10.5 Updates.

a) Talon.One may modify this Agreement from time to time. If a modification materially impacts this Agreement, Talon.One will use reasonable efforts to notify Customer through the Service and/or in accordance with Section 10.4 (Notices). Any changes to this Agreement posted on the Talon.One website will be effective upon the earlier of a) the Customer consenting to such changes in writing or b) upon Customer’s next Term renewal, except changes required by law or as necessary for new features will immediately become effective to the extent necessary to comply with such law or as required to use such new features. If Customer objects to the updated Agreement, as Customer’s exclusive remedy and without penalty, Customer may choose not to renew in accordance with the renewal terms set out in the Order Form. 

b) Except as set out in this Agreement, no variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).

10.6 Order of Precedence. In the event of  any conflict or inconsistency among the following documents, the order of precedence shall be (ranking from highest to lowest): a) the applicable Order Form, b) any exhibit, schedule, addendum or annex to this Agreement, and c) the body of this Agreement.

10.7 Headings. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.

10.8 Waiver & Cumulative Remedies. A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy. Unless expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

10.9 Severability. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction. If any provision or part-provision of this Agreement is deleted under this Section X 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.

10.10 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

10.11 Governing Law, Jurisdiction and Venue. Unless otherwise stated in an Order Form, this Agreement 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 with the laws of England and Wales, and the parties irrevocably submit to the exclusive jurisdiction of the courts of London. For the avoidance of doubt, the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to these Conditions. 

10.12 Execution and Binding Effect. This Agreement is accepted and becomes a binding contract upon the execution of an Order Form that references these online Terms and Conditions. The parties agree that any Order Form or other transactional document may be executed electronically and in one or more counterparts, which together will constitute one and the same instrument. Each party agrees that any electronic signature will have the same legal force and effect as a manual signature.

10.13 Entire Agreement. 

a) The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void and any requirement for a purchase order or similar document is solely for Customer’s internal accounting purposes and shall not affect, modify, or supersede Customer’s obligations under this Agreement or any Order Form. This Agreement, including all Order Forms and any other respective exhibits, attachments or addendums constitutes the entire understanding and agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties and their permitted successors and assigns.

b) Each party acknowledges that in entering into the Agreement 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 the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.

c) Nothing in this clause shall limit or exclude any liability for fraud.

d) The parties acknowledge and agree that any terms and conditions included in any purchase order, vendor portal or any similar Customer specific invoicing process are void and will not apply between the parties or to Customer’s purchase of the Subscription Service.

e) This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting this Agreement in construing or interpreting the provisions hereof. The language used in this Agreement shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either party shall apply to rights granted herein or to any term or condition of this Agreement.

Exhibit B - Service Level Agreement

Exhibit C - Data Processing Agreement

Exhibit D - EU Data Act Addendum