Last update: January 2023
Previous versions: Subscription Agreement March 2022 and Subscription Agreement November 2020
This Agreement is entered into between GIKI SOCIAL ENTERPRISE LTD which has its registered offices at 20-22, Wenlock Road, London, England, N1 7GU (Giki) and the company who has agreed to subscribe to the terms of this Agreement by e-mail, online or any other means (Customer).
Background
(A) Giki has developed certain software applications and platforms which it makes available to subscribers via the internet on a pay-per-use basis for the enterprise roll-out of Giki Zero (see https://zero.giki.earth/).
(B) The Customer wishes to use Giki’s service for the benefit of its Affiliates, employees, agents and independent contractors.
(C) Giki has agreed to provide and the Customer has agreed to take and pay for Giki’s service subject to the terms and conditions of this Agreement.
Agreed terms
- Interpretation
1.1 The definitions and rules of interpretation in this Clause apply in this Agreement.
Affiliate: is defined as those persons or entities located in various countries throughout the world which directly, or indirectly, individually or in combination, control, are controlled by, or are under common control with Customer’s ultimate parent company.
Authorised Users: those employees, agents and independent contractors of the Customer and Customer’s Affiliates who are authorised by the Customer to use the Services and the Documentation, as further described in Clause 2.2.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 10.5 or Clause 10.6.
Customer Data: the data inputted by the Customer for the purpose of using the Services or facilitating the Customer’s use of the Services.
Data Processing Agreement: means the data processing agreement to be entered into between Giki and the Customer pursuant to Clause 5, the terms of which can be found at https://giki.earth/data-processing-agreement/.
Documentation: the document made available to the Customer by Giki to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
Effective Date: the date upon which the Customer agrees to the terms of this Agreement.
Initial Subscription Term: means the period agreed between the parties and where there is no express agreement, the initial subscription term shall be for a period of twelve (12) months.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Renewal Period: the period described in Clause 12.1.
Services: the subscription services provided by Giki to the Customer under this Agreement via https://zero.giki.earth/ or any other website notified to the Customer by Giki from time to time, as more particularly described in the Documentation.
Software: the online software applications provided by Giki as part of the Services.
Subscription Fees: the subscription fees payable by the Customer to Giki for the User Subscriptions on the basis of the agreed tiers provided by Giki from time to time.
Subscription Term: has the meaning given in Clause 12.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
User Subscriptions: the user subscriptions purchased by the Customer pursuant to Clause 8.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Agreement.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
1.9 References to Clauses are to the clauses of this Agreement. - User subscriptions
2.1 Subject to the Customer purchasing the User Subscriptions in accordance with Clause 3.1 and Clause 8.1 and the restrictions set out in this Clause 2, Giki hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.
2.2 In relation to the Authorised Users, the Customer shall ensure that:
(a) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions for the relevant tier that the Customer is part of;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation; and
(c) each Authorised User shall keep a secure password for his use of the Services and Documentation and that each Authorised User shall keep his password confidential.
2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property;
and Giki reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this Clause.
2.4 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) use the Services and/or Documentation to provide services to third parties; or
(d) subject to Clause 19.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Clause 2; or
(f) introduce or permit the introduction of, any Virus into Giki’s information systems.
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Giki.
2.6 The Customer shall be able to designate administrative users (an “Administrative User”) who are able to designate other users as Administrative Users. Each Administrative Users will have access to additional user privileges.
2.7 The rights provided under this Clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer. - Additional user subscriptions
3.1 Subject to Clause 3.2 the Customer may, from time to time during any Subscription Term, change the tier of membership for more User Subscriptions.
3.2 If Giki approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of Giki’s invoice, pay to Giki the relevant fees for such additional User Subscriptions. - Services
4.1 Giki shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.
4.2 Giki shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance; and
(b) unscheduled maintenance performed outside Normal Business Hours. - Customer data
5.1 The Customer shall own all right, title and interest in and to all of the Customer Data that shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
5.2 The parties agree to comply with the terms of the Data Processing Agreement in respect of the processing of any Customer Data under the terms of this Agreement. - Giki’s obligations
6.1 Giki undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
6.2 The undertaking at Clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Giki’s instructions, or modification or alteration of the Services by any party other than Giki or Giki’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Giki will, at its expense, use all reasonable commercial 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 undertaking set out in Clause 7.1.
6.3 Giki:
(a) does not warrant that:
(i) the Customer’s use of the Services will be uninterrupted or error-free; or
(ii) that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; or
(iii) the Software or the Services will be free from vulnerabilities; or
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.4 This Agreement shall not prevent Giki 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 Agreement.
6.5 Giki warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement. - Customer’s obligations
The Customer shall:
(a) provide Giki with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information as may be required by Giki;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
(c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Giki may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Giki, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by Giki from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Giki’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet. - Charges and payment
8.1 The Customer shall pay the fees to Giki in accordance with this Clause 8.
8.2 The Customer shall be responsible for the following fees:
(a) An initial programme fee agreed between the parties before the Agreement;
(b) Subscription Fees for the User Subscriptions on an ongoing basis; and
(c) Any other fees for bespoke Services agreed from time to time, such as workshops.
8.3 The Customer shall on the Effective Date provide to Giki valid, up-to-date and complete approved purchase order information acceptable to Giki, or other agreement to proceed, and any other relevant valid, up- to-date and complete contact and billing details and, if the Customer provides:
(a) its approved purchase order information to Giki, Giki shall invoice the Customer:
(i) on the Effective Date for the fees payable under Clause 8.2 in respect of the membership fee and Initial Subscription Term;
(ii) subject to Clause 13.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period; and
(iii) any other fees agreed from time to time,
and the Customer shall pay each invoice within 30 days after the date of such invoice.
8.4 If Giki has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Giki:
(a) Giki may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Giki shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Barclays Bank Plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.5 All amounts and fees stated or referred to in this Agreement:
(a) shall be payable in pounds sterling;
(b) are, subject to Clause 11.3(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to Giki’s invoice(s) at the appropriate rate.
8.6 Any increase in the Subscription Fees and/or the fees payable in respect of the additional User Subscriptions purchased pursuant to Clause 3 shall be agreed in advance between the parties prior to any Renewal Period commencing. - Proprietary rights
9.1 The Customer acknowledges and agrees that Giki and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
9.2 Giki confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
9.3 Upon notification by the Customer of any claims, suits, or proceedings (“Claims”) brought by a third party that allege any aspect of the Services or Documentation infringes a third party’s intellectual property right, Giki shall indemnify the Customer and each of its Affiliates, directors, officers, employees, agents, customers and other end users of the Services or Documentation (“Customer Indemnitees”) in respect of any such claims. Giki shall have the right, with the approval of the Customer, which approval shall not be unreasonably withheld, to settle any such claims on terms and conditions of Giki’s own selection which are not in conflict with the terms and conditions of this Agreement and do not obligate or restrict any Customer Indemnitee in any material way. In addition to Giki’s obligations herein, Giki may, at its sole option, procure the right for all Customer Indemnitees to continue using the Services or Documentation to be materially similar, but non-infringing. - Confidentiality
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. 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.
10.2 Subject to Clause 10.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
10.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
10.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
10.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Giki’s Confidential Information.
10.6 Giki acknowledges that the Customer Data is the Confidential Information of the Customer.
10.7 Giki is not permitted to disclose in its advertising, referral or publicity material or otherwise (including any electronic media) the existence of this Agreement unless it has the prior written consent of the Customer, and the Customer is permitted to use Giki’s logo with prior written consent. - Limitation of liability
11.1 Except as expressly and specifically provided in this Agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Giki shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Giki by the Customer in connection with the Services, or any actions taken by Giki at the Customer’s direction;
(b) although the material provided as part of the Services and Documentation has been produced and processed from sources believed to be reliable, the use of such material is at the Customer’s own risk and Giki make’s no representation as to the accuracy or reliability of the data. The algorithms and models that are used to generate results in Giki Zero is based on Giki’s own objective criteria and independent research, and should not be relied on by the Customer or its Authorised Users as substitute for their own investigation or research;
(c) Giki is not responsible for any health problems that may result from any information that is provided to the Customer and/or its Authorised Users as part of their use of the Services and/or Documentation, and any reliance on such information is at their own risk. No content and information available or provided by the Services and/or Documentation is intended to replace the relationship between the Authorised Users and their doctor, or other medical provider or dietitian;
(d) 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 Agreement; and
(e) the Services and the Documentation are provided to the Customer on an “as is” basis.
11.2 Nothing in this Agreement excludes the liability of either party
(a) for death or personal injury caused by the other party’s negligence; or
(b) for fraud or fraudulent misrepresentation.
11.3 Subject to Clause 11.1 and Clause 11.2:
(a) Neither party shall be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
(b) Each party’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement and any obligations under the Data Processing Agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 11 months immediately preceding the date on which the claim arose. - Term and termination
12.1 This agreement shall, unless otherwise terminated as provided in this Clause 12, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this Agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
12.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement 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 Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party suffers an insolvency-type event.
12.3 On termination of this Agreement for any reason:
(a) all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) 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 the agreement which existed at or before the date of termination shall not be affected or prejudiced. - Force majeure
Giki shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, 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 Giki or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration. - Variation
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). - Waiver
No failure or delay by a party to exercise any right or remedy provided under this Agreement 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. - Rights and remedies
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law. - Severance
17.1 If any provision or part-provision of this Agreement 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 Agreement.
17.2 If any provision or part-provision of this Agreement is deemed deleted under Clause 18.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision. - Entire agreement
18.1 This Agreement and the Data Processing Agreement 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.
18.2 Each party acknowledges that in entering into this 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 this Agreement.
18.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
18.4 Nothing in this Clause shall limit or exclude any liability for fraud.
18.5 Notwithstanding the foregoing provisions of this Clause 18, any Authorised User’s use of the Service and/or Documentation shall be subject to compliance with the Giki Terms of Use (https://zero.giki.earth/terms-and-conditions) and the Giki Privacy Policy (https://zero.giki.earth/privacy-policy),or any updated links that may be available from time to time. - Assignment
19.1 The Customer shall not, without the prior written consent of Giki, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
19.2 Giki 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 Agreement. - Compliance
Giki shall at all times during the term of this Agreement comply with all applicable laws relevant to its duties, obligations and performance under this Agreement, including applicable laws concerning bribery, corruption and related matters; economic and trade sanctions and export controls. - No partnership or agency
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). - Third party rights
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999. - Notices
23.1 Any notice required to be given under this Agreement shall be sent by, or to, operations@giki.co.uk or an email address as notified by the Customer, or sent by pre-paid first- class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes.
23.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. - Governing law
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 in accordance with the law of England and Wales. - Jurisdiction
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 Agreement or its subject matter or formation (including non-contractual disputes or claims).