InstantAtlas ONLINE TERMS and CONDITIONS
This agreement (Agreement) is between GeoWise Limited (GeoWise) and you (as an individual using the service or software, and also, where applicable, the organisation on whose behalf the individual is acting) (Customer).
IMPORTANT: BY ELECTING TO USE THE SERVICE AND/OR SOFTWARE, THE CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT, AS MAY BE AMENDED FROM TIME TO TIME BY GEOWISE. IF THE CUSTOMER DOES NOT WISH TO ACCEPT THE TERMS OF THIS AGREEMENT AS STATED, THEN GEOWISE IS UNWILLING TO PROVIDE THE SERVICE AND/OR SOFTWARE . IF THE CUSTOMER IS REQUIRED TO AGREE TO THIS AGREEMENT AS PART OF THE ACCESS PROCESS TO THE SERVICE AND/OR SOFTWARE, AND THE CUSTOMER DOES NOT ACCEPT THE TERMS OF THE AGREEMENT, THE CUSTOMER MUST SELECT THE "I DISAGREE" OPTION AND/OR CLICK THE "CANCEL" BUTTON AND MUST NOT USE THE SERVICE AND/OR SOFTWARE. If you are accepting this Agreement on behalf of the Customer, you warrant and represent to GeoWise that you have the Customer’s authority to do so. If you are not so authorised, you assume sole personal liability for the Customer’s obligations and compliance with the terms of this Agreement.
Any Service or Software provided under this Agreement is provided subject to a licence, and not an agreement for sale. This Agreement gives the Customer certain limited rights to use the Service(s) (Online Service) and Software (Software) that is made available to the Customer through GeoWise ’s chosen cloud infrastructure provider(s) (together with any online or hard copy technical or service description documentation supplied with the Online Service that describes the benefits and features of the Online Service (Documentation) only for the Customer’s internal use and subject to the terms of this Agreement (the Purpose). All rights not specifically granted in this Agreement are reserved to GeoWise and its third party licensor(s).
This Agreement will also govern the provision of professional services (Professional Services) to Customer should any Professional Services be provided to Customer by GeoWise alongside the Online Service. Professional Services might include, but is not limited to, design, set up and maintenance of a web site or individual web pages, feature service modelling, data preparation and loading, custom app development and training .
The Online Service consists of one or more of the services or products as are further detailed in the Documentation and may be accessed either through an independent InstantAtlas Online account or through, and in conjunction with, the Environmental Systems Research Institute, Inc (Esri) online marketplace (Marketplace).
1. Reservation of ownership and grant of licence
1.1 The Online Service and/or Software are protected by applicable United Kingdom and international laws, treaties and conventions regarding intellectual property or proprietary rights. GeoWise and its third party licensor(s) retain exclusive title and ownership of the Online Service, and the Software.
1.2 In consideration of the payment of the applicable charges in accordance with clause 6 below, GeoWise hereby grants to the Customer, a personal non-exclusive non-transferable license to use the Online Service solely for the Purpose and subject to the terms and conditions of this Agreement. The Customer shall use its best endeavours to protect the Online Service and Software from any use, reproduction, exploitation, distribution, or publication not specifically permitted under this Agreement and shall, upon the request of GeoWise, provide feedback on the Customer’s user experiences of the Online Service.
1.3 During the term of this Agreement, the Customer may only permit third party consultants and contractors access and use of the Online Service for the Purpose . The Customer shall ensure that such consultants and contractors discontinue use of, and access to, the Online Service upon completion of the work for the Customer.
1.4 The Customer warrants that it will provide full and accurate contact details during the registration process for access to the Online Service, and in addition the Customer agrees to allow GeoWise to access the Customer’s Online Service account. This is necessary to enable GeoWise to administer the Customer’s account and to provide Customer support where applicable and as further detailed herein. GeoWise reserves the right to suspend or terminate any account created by a Customer where valid contact details cannot be verified with the Customer. The Customer will promptly notify GeoWise of any change to such contact details.
1.5 In the event that the individual who registered to use the Online Service leaves the Customer’s organisation, the Customer and individual shall promptly notify GeoWise and appropriate arrangements for the transfer, amendment or termination of the relevant account (as determined solely by GeoWise ) will be made by GeoWise . Where GeoWise is not informed and subsequently discovers that individual has left the Customer organisation, GeoWise, at its sole discretion, shall have the right to immediately terminate such individual’s account.
2. Online Service
2.1 In order to use the Online Service the Customer must ensure that it has in place any pre-requisite service, data, software or infrastructure licences required to use the Online Service (as notified by GeoWise from time to time) prior to such use. Unless otherwise stated to the contrary, the procurement of any such licences are the sole responsibility of the Customer. The Customer shall be responsible for obtaining, maintaining for the term of the Agreement, and directly entering into such relevant licences with the appropriate third parties for any service, data, software or infrastructure not supplied by GeoWise.
2.2 The Customer shall not:
2.2.1 Either directly or indirectly engage in any form of commercial exploitation of the Online Service or any constituent part of the Online Service (including Software). “Commercial exploitation” for the purposes of this clause 2.2.1 means allowing third parties access to the Online Service (save as provided specifically in 3.3.4 below in relation to Web Applications), regardless of whether revenue is generated by the Customer; or
2.2.2 without prejudice to clause 2.2.1, sell, rent, lease, sub licence, lend, assign, time-share, or transfer, in whole or in part, or provide third parties access to the Online Service or any constituent part of the Online Service (including Software); or
2.2.3 decompile, reverse engineer, disassemble or otherwise reduce any part of the Online Service or any constituent part of the Online Service (including Software) to human-readable form nor permit any third party to do so, save as permitted by law and in such circumstances on 30 (thirty) days prior written notice to GeoWise;
2.2.4 copy, make error corrections to or otherwise modify or adapt or translate, or (save as provided specifically in 3.3.4 below in relation to Web Applications) create derivative works based upon, the Online Service or any constituent part of the Online Service (including Software), nor permit a third party to do so; or
2.2.5 remove or obscure any copyright, trademark notice, or restrictive legend of GeoWise or its third-party licensor(s) nor permit a third party to do so.
2.3 Any additional services outside of this Agreement required by the Customer in relation to the Online Service may be provided by GeoWise by separate agreement between the parties.
2.4 The Customer is responsible for ensuring that it has appropriate hardware and bandwidth to access and use the Online Service.
2.5 The Customer shall not share with any third party any url, web address, usernames, passwords or access codes in relation to the Online Service provided by GeoWise to the Customer. The Customer shall ensure that it has in place sufficient and no less than reasonable technological security measures to prevent unauthorised disclosure of access and/or login details, and unauthorised access to and use of the Online Service. The Customer shall advise GeoWise as soon as reasonably practicable about any possible misuse of your access details or any other security incident relating to the Online Services.
2.6 Export Control Regulations: The Customer agrees to comply with all applicable laws and regulations, including United Kingdom and United States export control laws and regulations. In particular, the Customer agrees not to export, re-export, provide or make available the Online Service to any person or entity located in a U.S. embargoed country or to any person or entity on the U.S. Treasury Department’s Specially Designated National List or the U.S. Commerce Department’s Denied Persons List, Entity List, or Unverified List. By use of the Online Service, the Customer represents and warrants that it (a) is not located in or under the control of a U.S. embargoed country; (b) is not identified on any U.S. Treasury or U.S. Commerce Department restricted list; and (c) will not use the Online Service for nuclear, missile, chemical or biological weapon end use.
2.7 The Customer acknowledges and accepts that GeoWise may need to change or update features or functionality or the aesthetic appearance of the Online Service from time to time (for example, to improve functionality or undertake emergency repair). GeoWise will try to provide prior written notice where this is the case.
2.8 The Customer shall ensure that it and its third-party contractors and consultants do not use the Online Service:
2.8.1 to upload any illegal, harmful, fraudulent, offensive or infringing material and/or content; or
2.8.2 for any illegal, harmful, fraudulent activities or in any way prohibited by law or regulation, government orderor decree; or
2.8.3 to violate the rights of others or the security or integrity of any network, computer or communications system, or
2.8.4 to try to gain unauthorised access to or disrupt any service, device, data account or network; or
2.8.5 to span or distribute malware, or
2.8.6 in any way that could harm the Online Service or impair anyone else’s use of it, or
2.8.7 in any application or situation where failure of the Online Service could lead to the death or serious bodily injury of any person, or to sever physical or environmental damage
GeoWise reserves the right to delete the Customer’s data and any content from the Online Service, or to delete the Customer’s account, should the Customer not comply with these conditions or as required by law.
3.1 The Customer acknowledges that the Software (which is provided as part of the Online Service) is owned by GeoWise and its third-party licensors and the use of such Software shall be subject to the terms of this Agreement.
3.2 The Customer acknowledges that if the Service is procured through the Marketplace:
3.2.1 The Customer shall comply with the terms of the Marketplace.
3.2.2 The use of the Software requires an Esri ArcGIS Online (ArcGIS Online) subscription, provided by Esri, either directly or via it authorised distributor, and in order to use ArcGIS Online, Customer must acquire such subscription. Customer’s use of ArcGIS Online is solely subject to the applicable Esri license terms for ArcGIS Online.
3.2.3 Any data used in connection with the Online Service is subject to the applicable licensing terms of the data owner.
3.3 In relation to the Software used as part of the Online Service:
3.3.1 The Customer may use the Software on a subscription licence basis during the term for which the subscription fees have been paid.
3.3.2 The Customer may permit access and use of the Software by a named Customer end-user at the Customer’s location.
3.3.3 Software content published in accordance with this Agreement shall continue to be subject to this Agreement and shall include the following copyright attribution notice acknowledging GeoWise ’s and its third-party licensor(s) proprietary rights in the Software: “Copyright [insert the actual copyright date(s) from the source materials] GeoWise and its third-party licensors. All rights reserved.”
3.3.4 The Software may be used only to prepare and publish web application(s) (Web Application(s)) for which access to the user interface of the application can be made in accordance with this Agreement, and the Customer shall ensure that (i) it protects access to such Web Application by using reasonable technological security measures and (ii) it complies with all applicable laws and (iii) it complies with any obligations relating to third party intellectual property rights and (iv) such Web Applications are used for Customer’s internal business use only (which may include the public display of Web Applications but provided that such public display is not for commercial gain).
3.3.5 The Customer shall not use the Software to publish content on behalf of any third party without the written consent of GeoWise.
3.4 If GeoWise provides the Customer with the Software on a free of charge evaluation basis, the Software may only be used by the Customer for internal evaluation purposes and shall expire after a period of 60 days.
4. Professional Services
4.1 If the Customer cancels any Professional Services less than 1 week before the agreed date, it shall be liable for 100% of the charges and expenses therefor.
4.2 If the Customer orders and pays for a number of Professional Services days up front, the Customer must “call off” such days, in units of two or more days, for projects that are agreed with GeoWise from time to time, within a period of 12 months from the date of such order. No refund for unused days will be provided.
4.3 Unless otherwise agreed in writing, any days stated for Professional Services are only an estimate of the days required to carry out the Professional Services. Where the Professional Services are achieved using less than the estimated days and assuming that no further use is identified by the Customer for any unused days, such days will, in this instance, be cancelled without penalty. If further days are required above the number of days estimated, these will be agreed with the Customer and charged at the then appropriate charges.
5. Warranty
5.1 If access to the Online Service (including the Software) has been provided to the Customer free of charge or for evaluation purposes only, the Customer expressly agrees and acknowledges that it is fair and reasonable for it to be provided by GeoWise “as is”, without warranty or condition of any kind, either express or implied, including, but not limited to, warranties of non-infringement, merchantability, satisfactory quality, use of reasonable skill and care or fitness for any particular purpose.
5.2 If access to the Online Service has been provided to the Customer for a charge, GeoWise shall provide the Online Service and Technical Support (in accordance with Clause 11) using reasonable skill and care.
5.3 GeoWise will provide the Professional Services in accordance with any description or specification of such services and with reasonable skill and care.
5.4 All other warranties express or implied are hereby excluded to the fullest extent permitted by law.
6. Charges
6.1 The Customer shall pay GeoWise the applicable charges as advised by GeoWise. GeoWise may alter its charges on 4 (four) weeks’ notice in writing (including by email) to the Customer.
6.2 All charges are exclusive of VAT (which, where applicable, shall be paid by the Customer together with other applicable tax in the manner prescribed by law from time to time) and shall be due and payable by the Customer in advance in respect of the relevant period for which the Online Service is purchased.
6.3 Professional Services may be invoiced the sooner of:
6.3.1 completion of the work; or,
6.3.2 monthly in arrears for the services undertaken during the preceding month
and will be payable within 30 days of the date of invoice.
6.4 If the Customer fails to pay such charges by the due date, GeoWise shall be entitled to charge interest on the overdue amount. Any such interest shall be paid by the Customer to GeoWise on demand, from the due date up to the date of actual payment, after as well as before judgement, at the rate of 4% per annum above the base rate from time to time of the National Westminster Bank Plc. Any interest shall accrue on a daily basis and be compounded quarterly. GeoWise reserves the right to suspend the use of the Online Service by the Customer until any such overdue charges are paid.
7. Term and Termination
7.1 This Agreement shall commence on the latter of (i) the date of acceptance of this Agreement; or (ii) the date that the Customer is provided access to the Online Service or on the date of commencement of the Professional Services should GeoWise provide Professional Services before such acceptance or access (“ Commencement Date ”), and shall continue for a period of one (1) year (or for such other period if agreed by the parties in writing) or until the earlier of the following events:
7.1.1 GeoWise terminates for the Customer’s breach of this Agreement; or
7.1.2 GeoWise provides 4 (four) weeks’ notice in writing (including by email) to the Customer; or
7.1.3 The Customer elects to discontinue use of the Online Service.
(“Subscription Term ”)
7.2 The Customer’s Online Service subscription may be renewed by separate agreement between the parties.
7.3 Upon termination or expiry of this Agreement, GeoWise reserves the right to delete the Customer’s data and any content from the Online Service. Upon termination, all rights granted to Customer and Customer’s ability to access and use the Software, the Web Applications and their contents will cease. However, if the Software is procured through the Marketplace, Customer data, and that of Customer’s licensors, will still be accessible via ArcGIS Online, subject to the applicable data license terms, the ArcGIS Online subscription license and the Marketplace terms and conditions.
7.4 In the event of termination by GeoWise pursuant to Clause 7.1.2, GeoWise shall repay to the Customer a prorated portion of any unused subscription charges prepaid by the Customer.
7.5 If the Online Service is provided for evaluation purposes only, access to the Online Service shall expire 30 days after access is made available by GeoWise, at which point the Customer must stop using the Online Service and Software.
7.6 On termination Customer will pay to GeoWise for any Professional Services work undertaken up until the date of termination.
8. Limitation of liability
8.1 Except in respect of death or personal injury caused by GeoWise, or for GeoWise’s fraudulent misrepresentation, GeoWise’s total aggregate liability (whether in contract, tort or howsoever arising) in relation to this Agreement shall be limited (i) for the Online Services, to the subscription fees paid by the Customer for the Online Service and (ii) for the Professional Services, to the charges payable for the Professional Services.
8.2 Except in respect of death or personal injury caused by GeoWise, or for GeoWise ’s fraudulent misrepresentation, GeoWise shall not have any liability to the Customer in contract, tort (including negligence) or otherwise arising out of or in connection with this Agreement for any:
8.2.1 Loss of goodwill, profits, revenue, business, contracts or anticipated savings;
8.2.2 Special, indirect or consequential loss or damage (not falling within 8.2.1); and
8.2.3 Loss of data.
9. Indemnity to GeoWise by the Customer
9.1 The Customer shall fully indemnify and hold harmless GeoWise and its third-party licensor(s) from and against all liabilities, claims, suits or damages (including, but not limited to, legal fees, costs, judgements and reasonable expenses incurred) arising out of (a) any use of the Online Service (or its constituent parts (including Software) by the Customer (or its authorised third party consultants and contractors in accordance with clause 1.3) not permitted by this Agreement; and (b) any violation of laws or regulations.
9.2 The Customer agrees that, if the Customer breaches this Agreement, GeoWise may not adequately be compensated by money damages alone and therefore GeoWise shall be entitled without proof of special damage, in addition to any other right or remedy available to it (including, but not limited to, an action for damages), to the remedies of injunction, specific performance and other equitable relief in any court of competent jurisdiction for any actual, threatened or potential breach.
10. Data Protection
Definitions for this clause 10:
“ Applicable Data Protection Law ” means all applicable and relevant laws and regulations relating to Personal Data which are implemented in or are binding on the United Kingdom, or which otherwise govern the processing and use of Personal Data, and which include but are not limited to the EU General Data Protection Regulation and the Privacy and Electronic Communications Directive (2002/58/EC) (as implemented in the United Kingdom as the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI2003/2426), as amended or replaced.
“GDPR” means the EU General Data Protection Regulation.
“Order” is the Customer’s order as accepted by GeoWise incorporating the relevant elements of the corresponding GeoWise quotation/proposal (if any).
“ Personal Data ” is information defined as such in the Applicable Data Protection Law and/or information treated as such under any other law or regulation applicable to it.
10.1 For the purpose of any Personal Data processing under this Agreement, the Data Processor and the Data Controller shall be as defined in the Applicable Data Protection Law. The Data Controller and the Data Processor shall comply with their respective obligations as prescribed by Applicable Data Protection Law.
10.2 The Data Processor shall implement and maintain appropriate technical and organisational measures in order to meet the requirements of the GDPR and to ensure the rights of data subjects. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, to ensure a level of security appropriate to the risk, the Data Processor shall take the following measures: the pseudonymisation and/or encryption of the Personal Data; the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; the ability to restore the availability and access to the Personal Data in a timely manner in the event of a physical or technical incident; a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing .
10.3 The Data Processor shall not engage another data processor (a “sub-processor”) without the Data Controller’s written authorisation. So far as is necessary for the purposes and/or performance of this Agreement:
10.3.1 Customer hereby grants to GeoWise its written authorisation for GeoWise to use sub-processors to provide the Online Services, including: (i) the cloud service providers which GeoWise uses to provide the Onliine Service, as detailed in the corresponding Online Service specification, including: (a) Esri (additionally, ESRI (UK) Limited, whom is Esri’s authorised distributor of ArcGIS Online in the UK, solely for the purpose of facilitating the ArcGIS Online product); (b) WPEngine Inc; and (c) Microsoft Corporation; (ii) the hosting service providers which GeoWise uses for its back office systems; and (iii) the third party owner or licensor of any third party software and/or third party data (if applicable, for the purpose of licensing and administering access, use and support of the third party software and/or third party data).
10.3.2 Customer shall seek GeoWise’s written authorisation to engage any sub-processors.
Where a party wishes to make any changes to its use of sub-processors, including any additional or replacement sub-processors, it shall notify the other party so that the other party may object to such change. All sub-processors engaged pursuant to this 10.3 shall be bound by obligations no less onerous than those set out in 10 (Data Protection).
10.4 The subject-matter of the processing shall be as set out in writing, including in the Order, any corresponding proposal and/or quotation, or in any other form. The subject-matter includes the provision of the Online Services to Customer by GeoWise. The duration of the processing shall be for the term of this Agreement. The nature and purpose of the processing is the exchange, storage, transmission and use of Personal Data in the ordinary course of business, for the purpose of contract performance in relation to the subject-matter. The type of Personal Data and applicable categories of data subjects that will be processed includes: the names of the parties’ employees or contractors or representatives, their respective business email and business postal addresses, and business telephone numbers), and/or their IP addresses. Where there are categories of data subject not covered by this clause, for example, data subjects whom are children, the parties shall enter into a supplemental written agreement detailing additional rights and obligations.
10.5 The Data Processor shall:
10.5.1 process the Personal Data in accordance with the Data Controller’s documented instructions, including with regard to transfers to international organisations or to a third country, unless required to do so by law (in which case the Data Processor will inform the Data Controller of such legal requirement prior to the processing, unless prohibited from doing so on legal grounds);
10.5.2 ensure that any person processing the Personal Data is bound by obligations of confidentiality;
10.5.3 take the measures detailed in 10.2 (technical and organisational measures);
10.5.4 abide by the process and obligations in 10.3 (engagement of sub-processors); and shall be responsible and liable to the Data Controller for the performance of such sub-processor’s obligations;
10.5.5 taking into account the nature of the processing, assist the Data Controller in its obligations to respond to data subject requests to exercise their rights (including transparency, information and access, rectification, erasure, restriction, data portability, to object and automated individual decision-making; all subject to any of the restrictions provided by Applicable Data Protection Law);
10.5.6 assist the Data Controller in ensuring compliance with 10.2 (technical and organisational measures);
10.5.7 where a data protection impact assessment has indicated that the processing will result in high risk, assist the Data Controller in undertaking prior consultation with the supervisory authority;
10.5.8 atthe choice of the Data Controller, delete or return to the Data Controller all of the Personal Data after the end of the provision of services relating to processing, and delete existing copies unless the law requires storage of the Personal Data ;
10.5.9 make available to the Data Controller all information necessary to demonstrate compliance with the obligations detailed in this clause 10, and shall immediately inform the Data Controller if, in the Data Processor’s opinion, an instruction infringes the GDPR. Upon the Data Controller’s request, the Data Processor shall and allow for and contribute to audits, including inspections, conducted by the Data Controller or the Data Controller’s approved auditor;
10.5.10 notify the Data Controller without undue delay after becoming aware of a Personal Data breach, and in any event within 24 hours
10.5.11 where required, maintain a written record of all categories of processing activities that it carries out on behalf of the Data Controller in accordance with the GDPR and make the record available to supervisory authority on request. Such records for the purposes of this Agreement should include: (i) the name and contact details of the Data Processor (including any relevant sub-processors) and of the Data Controller, together with details of their representatives and any data protection officer; (ii) the categories of processing being carried out; (iii) any transfers of Personal Data to a third country or international organisation, including identifying the third country or international organisation and the suitable safeguards; and (iv) the measures detailed in 1.2 (technical and organisational measures);
10.5.12 cooperate , on request, with the supervisory authority in the performance of its tasks.
10.6 Where the Data Processor transfers Personal Data to a third country / international organisation in accordance with 10.3 (engagement of sub-processors) it shall ensure that appropriate safeguards are in place and that enforceable data subject rights and effective legal remedies for data subjects are available. Specifically, such safeguards include one or more of the following: binding corporate rules; approved standard data protection clauses adopted by the EU Commission; or an approved certification mechanism (for example the EU-US Privacy Shield) together with binding and enforceable commitments of the sub-processor in the third country to apply the safeguards (including data subjects rights).
Where Personal Data is transferred to Esri (located in the United States of America) pursuant to clause 10.3, the appropriate safeguards comprise (i) Esri’s certification under the EU-US Privacy Shield; (ii) Esri’s data processing addendum, available at www.esri.com/legal/privacy-gdpr; and (iii) the security measures which are detailed at https://doc.arcgis.com/en/trust/.
Where Personal Data is transferred to WPEngine Inc (located in the United States of America) pursuant to clause 10.3, the appropriate safeguards comprise (i) WPEngine Inc’s certification under the EU-US Privacy Shield; (ii) WPEngine Inc’s data processing addendum, available at https://wpengine.com/legal/dpa/; and (iii) the security measures which are detailed at https://wpengine.co.uk/technology/security/. In relation to customer data stored in the WPEngine, such is stored in the UK data centre.
Where Personal Data is transferred to Microsoft Corporation (located in the United States of America) pursuant to clause 10.3, the appropriate safeguards comprise Microsoft’s certification under the EU-US Privacy Shield; with full details available via https://privacy.microsoft.com/en-gb/privacystatement. In relation to customer data stored in Microsoft’s Azure, such is stored in the UK and Ireland data centres.
10.7 The Data Controller will ensure that it has a sufficient and valid lawful basis for providing any Personal Data to and authorising the Data Processor to perform its obligations, activities and exercise its rights under this clause 10.
11. Technical Support
11.1 During the Subscription Term, if the Customer experiences difficulties in using the Software or Online Service, GeoWise will provide advice, via its support helpline number and email, between 9am and 5pm UK time, every day excluding weekends and public holidays in Scotland. Such technical support shall not include diagnosis and rectification of any problem arising from (a) improper use, operation or neglect of the Software or Online Services (b) modification of the Software (unless permitted under this Agreement) or Online Service (c) merger of, or use of, the Software (in whole or in part) with any other software (d) failure to implement recommendations in relation to the Software or Online Service (e) any repair, adjustment or modification of the Software or Online Service by any person other than GeoWise (f) any breach of Customer’s obligations hereunder or (g) use of the Software or Online Service for a purpose for which it was not designed. If GeoWise provides technical support notwithstanding the occurrence of the circumstances in (a) – (g) above, GeoWise shall be entitled to charge for such services at its discretion at GeoWise ’s standard rates from time to time and subject to GeoWise ’s standard terms and conditions for such services.
11.2 If the Customer acquires the Software or Online Services via a third party, unless otherwise agreed in writing by GeoWise, the Customer should seek support directly from that third party.
12. General
12.1 Neither party shall be liable to the other party for a failure to perform its obligations under this Agreement if such failure results from circumstances beyond the party’s reasonable control, which includes acts or omissions of Internet traffic carriers and actions or omissions of regulatory and governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Online Services) provided the party seeking to claim force majeure informs the other party as soon as practical and shall use reasonable endeavours to bring the force majeure event to a close or to find a solution by which the obligation may be performed despite the continuance of the force majeure event.
12.2 The Customer may not assign, novate, or otherwise transfer any of its rights under this Agreement without the prior written consent of GeoWise.
12.3 This Agreement constitutes the whole understanding between GeoWise and the Customer in relation to the subject matter of this Agreement and shall supersede any prior promises, representations, undertakings or implications made orally or in writing.
12.4 No delay, neglect, or forbearance on the part of either party in enforcing against the other party any term or condition of the Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under the Agreement.
12.5 Any clauses that are intended to survive termination including clauses 1, 2, 3, 7, 8, 9, 11 and 12 will survive termination of this Agreement and will continue in full force and effect.
12.6 Any notice required to be given under this Agreement will be in writing and may be delivered by post, by hand, by email, or by facsimile transmission. A notice will be deemed given when delivered. The Customer will send all notices to GeoWise for the attention of the Legal Department at GeoWise’s registered address. GeoWise will send all notices to the Customer at one or more of the addresses provided in accordance with clause 1.4. Either party may change its address and person to be notified by notifying the other party in writing of that change.
12.7 This Agreement shall be subject to and construed and interpreted in accordance with the Laws of Scotland and shall be subject to the exclusive jurisdiction of the Courts of Scotland.