Deklum – Terms of Service
Last updated: 08 April 2021
Overview of this Agreement
This Deklum Services Agreement (“Agreement”) is a legal agreement between Deklum Limited (“Deklum”, “us”, or “we”) and the entity or person (“Customer”, “you”, “your”, or “user”) who registered on the Deklum Account page to receive certain data preserving, technology and other business services that may be offered by Deklum and its affiliates (each, a “Service”). This Agreement describes the terms and conditions that apply to your use of the Services. If you do not understand any of the terms of this Agreement, please contact us before using the Services. Before using the Services, you must register with Deklum and create an account (an “Deklum Account”).
By accessing or using the Services and Deklum websites, you acknowledge and agree that you have read, understand, and agree to be bound by this Agreement and our Privacy Policy. If you do not agree to the terms and conditions of this Agreement, please do not access or use the Services and Deklum websites.
We have the right to change or add to the terms of this Agreement at any time, solely with prospective effect, and to change, delete, discontinue, or impose conditions on use of the Services by posting such changes on our website or any other website we maintain or own. We will provide you with notice of any changes through the website, via email, or through other reasonable means. If you are an existing Deklum user, the changes will come into effect on the date we specify in the notice, and your use of the Services after a change has taken effect, constitutes your acceptance of the terms of the modified Agreement. You can access a copy of the current terms of this Agreement on our website at any time. You can find out when this Agreement was last changed by checking the “Last updated” date at the top of the Agreement.
Registering and using your Deklum account
Registration and unauthorised account use
To access the Services, you must register for an Deklum account by creating a username, password and providing other information. You agree to provide us with accurate, complete, and current registration information about yourself. It is your responsibility to ensure that your password remains confidential and secure. By registering, you agree that you are fully responsible for all activities that occur under your username and password. We may assume that any communications we receive under your account have been made by you. If you are a billing owner, an administrator, or if you have confirmed in writing that you have the authority to make decisions on behalf of a customer (“Account Administrator”), you represent and warrant that you are authorised to make decisions on behalf of the customer and agree that Deklum is entitled to rely on your instructions.
You are responsible for notifying us at support@deklum.com if you become aware of any unauthorised use of or access to your account. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account. Deklum will not be liable for any loss, damages, liability, expenses or legal fees that you may incur as a result of someone else using your password or account, either with or without your knowledge and/or authorisation, and regardless of whether you have or have not advised us of such unauthorised use. You will be liable for losses, damages, liability, expenses and legal fees incurred by Deklum or a third party due to someone else using your account. In the event that the Account Administrator or customer loses access to an account or otherwise requests information about an account, Deklum reserves the right to request from the Account Administrator or customer any verification it deems necessary before restoring access to or providing information about such account in its sole discretion.
Representative
You or the person or people submitting the application (“Representative”) individually affirm to Deklum that your Representative is authorised to provide the relevant information described in the account details on your behalf and to bind you to this Agreement. We may require you or your Representative to provide additional information or documentation demonstrating your Representative’s authority. Without the express written consent of Deklum, neither you nor your Representative may register or attempt to register for an Deklum Account on behalf of a user Deklum previously terminated from use of the Services.
The following special requirements apply in relation to persons that are not at least 18 years old. If you are an individual or sole proprietor, and you are not at least 18 years old, but you are 13 years old or older, your Representative must be your parent or legal guardian. If you are a legal entity that is owned, directly or indirectly, by an individual who is not at least 18 years old, but the individual is 13 years old or older, your Representative must either obtain the consent of your board or of an authorised officer. Any such approving board, authorised officer, parent, or legal guardian is responsible to Deklum and is legally bound to this Agreement as if it had agreed to the terms of this Agreement itself. You may not use the Services if you are under 13 years of age.
Validation and Underwriting
At any time during the term of this Agreement and your use of the Services, we may require additional information from you to verify beneficial ownership or control of the business, validate information you provided, verify you or your Representative’s identity, and assess the risk associated with your business. This additional information may include business invoices, copies of government-issued identification, business licences, or other information related to your business, its beneficial owners or principals. Your failure to provide this information or material may result in suspension or termination of your Deklum Account.
You authorise us to retrieve information about you from our service providers and other third parties, including credit reporting agencies and information bureaus and you authorise and direct such third parties to compile and provide such information to us. You acknowledge that this may include your name, addresses, credit history, and other data about you or your Representative. You acknowledge that we may use your information to verify any other information you provide to us, and that any information we collect may affect our assessment of your overall risk to our business. You acknowledge that in some cases, such information may lead to suspension or termination of your Deklum Account. Deklum may periodically update this information as part of our underwriting criteria and risk analysis procedures.
Disclosures and notices; electronic signature consent
By registering for an Deklum Account, you agree that such registration constitutes your electronic signature, and you consent to electronic provision of all disclosures and notices from Deklum, including those required by law. You also agree that your electronic consent will have the same legal effect as a physical signature. You agree that Deklum can provide notices regarding the Services to you through our website or platform, or by mailing notices to the email or physical addresses identified in your Deklum Account. Notices may include notifications about your Deklum Account, changes to the Services, or other information we are required to provide to you. You also agree that electronic delivery of a notice has the same legal effect as if we provided you with a physical copy. We will consider a notice to have been received by you within 24 hours of the time a notice is either posted to our website or emailed to you.
You authorise us to provide notices to you via text message to allow us to verify your or your Representative’s control over your Deklum Account (such as through two-step verification), and to provide you with other critical information about your Deklum Account. In the event of a suspected or actual fraud or security threat to your Deklum Account, Deklum will use SMS, email or another secure procedure to contact you. Standard text or data charges may apply to such notices. Due to the nature of the Services, you will not be able to begin using the Services without agreeing to electronic delivery of notices. However, you may choose to withdraw your consent to receive notices electronically by terminating your Deklum Account.
Suspicion of unauthorised or illegal use
We may refuse, condition, or suspend any use or transactions that we believe: (i) may violate this Agreement or other agreements you may have with Deklum; (ii) are unauthorised, fraudulent or illegal; or (iii) expose you, Deklum, or others to risks unacceptable to Deklum. If we suspect or know that you are using or have used the Services for unauthorised, fraudulent, or illegal purposes, we may share any information related to such activity with the appropriate financial institution, regulatory authority, or law enforcement agency consistent with our legal obligations. This information may include information about you, your Deklum Account, your customers, and transactions made through your use of the Services.
Services and Deklum account support
We will provide you with support to resolve general issues relating to your Deklum Account and your use of the Services. This support includes resources and documentation that we make available to you through the current versions of Deklum’s support pages, API documentation, and other pages on our website (collectively, “Documentation”). The most efficient way to get answers to your questions is to review our Documentation. If you still have questions after reviewing the Documentation, please contact us at: support@deklum.com
Data Usage, Privacy, and Security
Data Usage Overview
Protecting, securing, and maintaining the information processed and handled through the Services is one of our top priorities, and it should be yours too. This section describes our respective obligations when handling and storing information connected with the Services. The following terms used in this section relate to data provided to Deklum by you or your customers, or received or accessed by you through your use of the Services:
Personal Data” means information that identifies a specific living person (not a company, legal entity, or machine) and is transmitted to or accessible through the Services.
“Deklum Data” means details of the API transactions over Deklum infrastructure, information used in fraud detection and analysis, aggregated or anonymised information generated from Data, and any other information created by or originating from Deklum or the Services.
“User Data” means information that describes your business and its operations, your products or services, and orders placed by customers.
The term “Data” used without a modifier means all Personal Data, User Data, Payment Data, and Deklum Data.
Deklum processes, analyses, and manages Data to: (a) provide Services to you, other Deklum users, and customers; (b) mitigate fraud, financial loss, or other harm to users, customers and Deklum; and (c) analyse, develop and improve our products, systems, and tools. Deklum provides Data to third-party service providers and their respective affiliates, as well as to Deklum’s affiliates, to allow us to provide Services to you and other users. We do not provide Personal Data to unaffiliated parties for marketing their products to you. You understand and consent to Deklum’s use of Data for the purposes and in a manner consistent with this section.
Data Protection and Privacy
Deklum will only use User Data as permitted by this Agreement, by other agreements between you and us, or as otherwise directed or authorised by you. You will protect all Data you receive through the Services, and you may not disclose or distribute any such Data , and you will only use such Data in conjunction with the Services and as permitted by this Agreement or by other agreements between you and us. Neither party may use any Personal Data to market to customers unless it has received the express consent from a specific customer to do so.
Protection of Personal Data is extremely important to us. Our Privacy Policy explains how and for what purposes we collect, use, retain, disclose, and safeguard the Personal Data you provide to us. We shall, in providing the Services, comply with its Privacy Policy relating to the privacy and security of Personal Data. You agree to the terms of our Privacy Policy, which we may update from time to time. You affirm that you are now and will continue to be compliant with all applicable laws governing the privacy, protection, and your use of Data that you provide to us or access through your use of the Services. You also affirm that you have obtained all necessary rights and consents under applicable laws to disclose to Deklum – or allow Deklum to collect, use, retain, and disclose – any Personal Data that you provide to us or authorise us to collect, including Data that we may collect directly from customers using cookies or other similar means.
Deklum will provide some or all of the Services from systems located within the United States or other countries outside of Ireland. As such, it is your obligation to disclose to your customers that Personal Data may be transferred, processed, and stored outside of Ireland and, as set forth in our Privacy Policy, may be subject to disclosure as required by applicable laws, and to obtain from your customers all necessary consents under applicable laws in relation to the foregoing. If we become aware of an unauthorised acquisition, disclosure, or loss of Personal Data on our systems, we will notify you consistent with our obligations under applicable law. We will also notify you and provide you sufficient information regarding the unauthorised acquisition, disclosure, or loss to help you mitigate any negative impact on your customer.
You are the data controller, and we are the data processor in relation to Personal Data processed on your behalf under this Agreement, except that we will be a data controller in relation to Personal Data where we determine the purposes and manner in which the Personal Data is processed. We will, to the extent that we are a data processor, process Personal Data in accordance with the terms of this Agreement and lawful instructions reasonably given by you to us from time to time, and we will employ appropriate technical and organisational measures to protect such Personal Data. We will not be liable for any claim brought by a data subject arising from any action or omission by us, to the extent that such action or omission resulted from your instructions.
Deklum’s Security Controls
Deklum is responsible for protecting the security of Data in our possession. We will maintain commercially reasonable administrative, technical, and physical procedures to protect User Data and Personal Data stored in our servers from unauthorised access, accidental loss, modification, or breach, and we will comply with applicable laws when we handle User and Personal Data. However, no security system is impenetrable, and we cannot guarantee that unauthorised parties will never be able to defeat our security measures or misuse any Data in our possession. You provide User Data and Personal Data to Deklum with the understanding that any security measures we provide may not be appropriate or adequate for your business, and you agree to implement Security Controls (as defined below) and any additional controls that meet your specific requirements. In our sole discretion, we may take any action, including suspension of your Deklum Account, to maintain the integrity and security of the Services or Data, or to prevent harm to you, us, customers, or others. You waive any right to make a claim against us for losses you incur that may result from such actions. You are solely responsible for the security of any Data on your website, your servers, in your possession, or that you are otherwise authorised to access or handle. You will comply with applicable laws when handling or maintaining User Data and Personal Data and will provide evidence of your compliance to us upon our request. If you do not provide evidence of such compliance to our satisfaction, we may suspend your Deklum Account or terminate this Agreement.
You are responsible for assessing the security requirements of your business and selecting and implementing security procedures and controls (“Security Controls”) appropriate to mitigate your exposure to security incidents. We may provide Security Controls as part of the Services or suggest that you implement specific Security Controls. However, your responsibility for securing your business is not diminished by any Security Controls that we provide or suggest, and if you believe that the Security Controls, we provide are insufficient, then you must separately implement additional controls that meet your requirements.
Fees and taxes
Deklum will provide the Services to you at the rates and for the fees (“Fees”) described on the Pricing page, linked here, and incorporated into this Agreement. We may revise the Fees at any time. However, we will provide you with at least 30 days’ advance notice before revisions become applicable to you (or a longer period of notice if this is required by applicable Law).
You are also obligated to pay all taxes, fees and other charges imposed by any governmental authority, including any value added tax, goods and services tax, sales tax and applicable indirect and transactional taxes (“Taxes”) on the Services provided under this Agreement. Our fees are exclusive of any applicable Taxes, except as expressly stated to the contrary. You have sole responsibility and liability for: (i) determining what, if any, Taxes apply to the sale of your products and services, acceptance of donations, or payments you receive in connection with your use of the Services; and (ii) assessing, collecting, reporting, and remitting Taxes for your business to the appropriate tax and revenue authorities. If we are required to withhold any Taxes, or we are unable to validate any tax-related identification information you provide to us, we may deduct such Taxes from amounts otherwise owed and pay them to the appropriate taxing authority. If you are exempt from payment of such Taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to your tax-exempt status. Upon our reasonable request, you must provide us with information regarding your tax affairs. We may send documents to you and tax authorities for transactions processed using the Services. Specifically, pursuant to applicable law, we may be required to file periodic informational return with taxing authorities in relation to your use of the Services. We also may, but are not obliged to, electronically send you tax-related information.
Term and termination
This Agreement is effective upon the date you first access or use the Services and continues until terminated by you or Deklum. You may terminate this Agreement by closing your Deklum Account at any time and ceasing to use the Services. If you use the Services again or register for another Deklum Account, you are consenting to this Agreement. We may terminate this Agreement or close your Deklum Account at any time for any reason by providing you advance notice (the period of notice as required by applicable law). We may suspend your Deklum Account or terminate this Agreement, if: (i) we determine in our sole discretion that you are ineligible for the Services because of significant fraud or credit risk, or any other risks associated with your Deklum Account; (ii) you use the Services in a prohibited manner or otherwise do not comply with any of the provisions of this Agreement; (iii) any law requires us to do so; or (iv) we are otherwise entitled to do so under this Agreement.
Termination does not immediately relieve you of obligations incurred by you under this Agreement. In addition, upon termination you understand and agree that: (i) all licences granted to you by Deklum under this Agreement will end; (ii) we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers; (iii) we will not be liable to you for compensation, reimbursement, or damages related to your use of the Services, or any termination or suspension of the Services or deletion of your information or account data; (iv) you shall make no further use of any equipment, property, Documentation and other items (and all copies of them), (v) Deklum may destroy or otherwise dispose of any of the Data in its possession, and (vi) you are still liable to us for any Fees or fines, or other financial obligation incurred by you or through your use of the Services prior to termination. Any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to be reimbursed for all Services offered up to the date of termination and 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.
Additional Legal Terms and Conditions
1. Third party providers
You acknowledge that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Deklum makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by you, with any such third party. Any contract entered into and any transaction completed via any third-party website is between you and the relevant third party, and not Deklum. Deklum recommends that you refer to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. Deklum does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
2. Customer’s obligations
2.1 By accepting the terms of this Agreement, you represent and warrant that: (i) you are eligible to register and use the Services and have the authority to execute and perform the obligations required by this Agreement; (ii) that any information you provide us about your business, products, or services is accurate and complete; (iii) that your employees, contractors and agents will at all times act consistently with the terms of this Agreement; and (iv) that you will not use the Services, directly or indirectly, for any fraudulent or illegal undertaking, or in any manner that interferes with the normal operation of the Services.
2.2 You also agree to:
(a) provide Deklum with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information as may be required by Deklum;
in order to provide the Services, including but not limited to 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 your provision of such assistance as agreed by the parties, Deklum 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 user’s breach of this Agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Deklum, 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 Deklum 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 Deklum’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.
2.3 You may only use the Services for legitimate transactions. Deklum is not responsible for the products or services you publicise or sell. You affirm that you are solely responsible for the nature and quality of the products or services you provide, and for delivery, support, refunds, returns, and for any other ancillary services you provide to your customers. You are responsible for knowing whether a transaction initiated by your customer is erroneous or suspicious. You are solely responsible for any losses you incur due to erroneous or fraudulent transactions in connection with your use of the Services. You are solely responsible for providing support to your customers regarding transaction receipts, product or service delivery, support, returns, refunds, and any other issues related to your products and services and business activities. We are not responsible for providing support for the Services to your customers unless we agree to do so in a separate agreement with you or one of your customers.
2.4 You 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 Deklum reserves the right, without liability or prejudice to its other rights to you, to disable your access to any material that breaches the provisions of this clause.
For the purpose of this Agreement, “Virus” means 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 rearranging, 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.
2.5 You 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) 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; 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; or
(f) introduce or permit the introduction of, any Virus or Vulnerability into Deklum’s network and information systems.
2.6You 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 Deklum.
2.7The rights provided under this clause are granted to you only, and shall not be considered granted to any of your subsidiary or holding companies.
3. Proprietary rights
3.1 As between you and Deklum, Deklum and its licensors exclusively own all rights, title, and interest in the patents, copyrights (including rights in derivative works), moral rights, rights of publicity, trademarks or service marks, logos and designs, trade secrets, and other intellectual property embodied by, or contained in application programming interfaces that may be used to access the Services (“API”), the Services, the Deklum dashboard (“Dashboard”), and Documentation (collectively, “Deklum IP”) or any copies thereof. Deklum IP is protected by copyright, trade secret, patent, and other intellectual property laws, and all rights in Deklum IP not expressly granted to you in this Agreement are reserved.
3.2 You may choose to or we may invite you to submit comments or ideas about improvements to the Services, our API, our platform, or any other component of our products or services (“Ideas”). If you submit an Idea to us, we will presume that your submission was voluntary, unsolicited by us, and delivered to us without any restrictions on our use of the Idea. You also agree that Deklum has no fiduciary or any other obligation to you in connection with any Idea you submit to us, and that we are free to use your Ideas without any attribution or compensation to you.
3.3 You are granted a non-exclusive and non-transferable licence to electronically access and use the Deklum IP only in the manner described in this Agreement. Deklum does not sell to you, and you do not have the right to sublicence the Deklum IP. We may make updates to the Deklum IP or new Services available to you automatically as electronically published by Deklum, but we may require action on your part before you may use the Deklum IP or new Services (including activation through the Dashboard, or acceptance of new or additional terms). Deklum may revoke or terminate this licence at any time if you use Deklum IP in a manner prohibited by this Agreement.
3.4 You may not: (i) claim or register ownership of Deklum IP on your behalf or on behalf of others; (ii) sublicence any rights in Deklum IP granted by us; (iii) import or export any Deklum IP to a person or country in violation of any country’s export control Laws; (iv) use Deklum IP in a manner that violates this Agreement or laws; or (v) attempt to do any of the foregoing.
3.5 During the term of this Agreement, you may publicly identify us as the provider of the Services to you and we may publicly identify you as an Deklum user. If you do not want us to identify you as a user, please contact us. Neither you nor we will imply any untrue sponsorship, endorsement, or affiliation between you and Deklum. Upon termination of your Deklum Account, both you and Deklum will remove any public references to our relationship from our respective websites.
3.6 Deklum has developed and provides access to the API that may be used to access the Services. You may use the API solely as described in the Documentation to use the Services on websites and through the applications identified in your Deklum Account. You may manage your Deklum Account, connect with other service providers, and enable additional features through the Dashboard. Deklum will use the Dashboard to provide you with information about your Deklum Account. You may not use the API for any purpose, function, or feature not described in the Documentation or otherwise communicated to you by us. Due to the nature of the Services, we will update the API and Documentation from time to time, and may add or remove functionality. We will provide you notice in the event of material changes, deprecations, or removal of functionality from the API so that you may continue using the Services with minimal interruption.
3.7 You further acknowledge and agree that Deklum 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 you 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.
4. Your Liability for Third Party Claims Against Us
4.1 Without limiting, and in addition to, any other obligation that you may owe under this Agreement, you are at all times responsible for the acts and omissions of your employees, contractors and agents, to the extent such persons are acting within the scope of their relationship with you.
4.2 You agree to defend Deklum, our affiliates, and their respective employees, agents, and service providers (each an “Deklum Entity”) against any claim, suit, demand, loss, liability, damage, action, or proceeding (each, a “Claim”) brought by a third party against an Deklum Entity, and you agree to fully reimburse the Deklum Entities for any Claims that result from: (i) your breach of any provision of this Agreement; (ii) any Fees, or any other liability we incur that results from your use of the Services; (iii) negligent or wilful misconduct of your employees, contractors, or agents; or (iv) contractual or other relationships between you and customers.
4.3 If you are using Services as a sole proprietor, please keep in mind that the law and the terms of this Agreement consider you and your business to be legally one and the same. You are personally responsible and liable for your use of the Services, payment of Fees, losses based on disputes or fraud, or for any other amounts you owe under this Agreement.
5. No warranties and limitation of liability
5.1 Except as expressly and specifically provided in this Agreement:
(a) you assume sole responsibility for results obtained from the use of the Services and the Documentation by you, and for conclusions drawn from such use. Deklum shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Deklum by you in connection with the Services, or any actions taken by Deklum at your direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
(c) the Services and the Documentation are provided to you on an “as is” basis.
5.2 Except to the extent prohibited by law, or to the extent that any statutory rights apply that cannot be excluded, limited or waived, Deklum does not make any other warranties or representations of any kind, whether express, implied, statutory or otherwise regarding the online software applications provided by Deklum as part of the Services (the “Software”) or the Services including, without limitation, in relation to the quality of the Software or the Services, your use of the Software or the Services being on an uninterrupted or error free basis, that the Services, Documentation and/or the information obtained by you through the Services will meet your requirements or that the Software or the Services will be free from Vulnerabilities. You acknowledge and agree that Deklum 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 you acknowledge that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.3 For the purpose of this Agreement, “Vulnerabilities” means a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
(a) Under no circumstances will any Deklum Entity be responsible or liable to you, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any indirect, punitive, incidental, special, consequential, or exemplary damages (including 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) resulting from your use or inability to use the Services or for the unavailability of the Services, for lost profits, personal injury, or property damage, or for any other damages arising out of, in connection with, or relating to this Agreement or your use of the Services, even if such damages are foreseeable, and whether or not you or the Deklum Entities have been advised of the possibility of such damages. The Deklum Entities are not liable, and deny responsibility for, any damages, harm, or losses to you arising from or relating to hacking, tampering, or other unauthorised access or use of the Services, your Deklum Account, or data, or your failure to use or implement anti-fraud measures, Security Controls, or any other data security measure. The Deklum Entities further deny responsibility for all liability and damages to you or others caused by: (a) your access or use of the Services inconsistent with the Documentation; (b) any unauthorised access of servers, infrastructure, or data used in connection with the Services; (c) interruptions to or cessation of the Services; (d) any bugs, viruses, or other harmful code that may be transmitted to or through the Services; (e) any errors, inaccuracies, omissions, or losses in or to any data provided to us; (f) third-party content provided by you; or (g) the defamatory, offensive, or illegal conduct of others.
(b) You agree to limit any additional liability not disclaimed or denied by the Deklum Entities under this Agreement to your direct and documented damages; and you further agree that under no circumstances will any such liability exceed in the aggregate the amount of Fees paid by you to Deklum during the three-month period immediately preceding the event that gave rise to your claim for damages.
(c) These limitations on our liability to you will apply regardless of the legal theory on which your claim is based, including contract, tort (including negligence), strict liability, or any other theory or basis.
5.4 This Agreement shall not prevent Deklum 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. Right to audit
If we believe that a security breach, leak, loss, or compromise of data has occurred on your systems, website, or app affecting your compliance with this Agreement, we may require you to permit a third-party auditor approved by us to conduct a security audit of your systems and facilities, and you must fully cooperate with any requests for information or assistance that the auditor makes to you as part of the security audit.
7. Force majeure
Deklum shall have no liability to you 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 Deklum or any other party), failure of a utility service or transport or telecommunications network, act of God, pandemic, 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 subcontractors, provided that you are notified of such an event as soon as reasonably practicable.
8. 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.
9. 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.
10. Severance
10.1 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.
10.2 If any provision or part-provision of this Agreement is deemed deleted 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.
11. Entire agreement
11.1 This 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.
11.2 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.
11.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
11.4 Nothing in this clause shall limit or exclude any liability for fraud.
12. Assignment
12.1 You shall not, without the prior written consent of Deklum, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
12.2 Deklum 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.
13. 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).
14. Responding to legal process
Deklum may respond to and comply with any writ of attachment, lien, levy, subpoena, warrant, or other legal order (“Legal Process”) that we believe to be valid. Deklum may, subject to the terms of our Privacy Policy, hold any data as required under such Legal Process, even if you are receiving data on behalf of other parties. Where permitted by law, we will make reasonable efforts to provide you notice of such Legal Process by sending a copy to the email address we have on file for you. Deklum is not responsible for any losses, whether direct or indirect, that you may incur as a result of our response or compliance with a Legal Process.
15. Language
The parties hereby acknowledge that they have required this Agreement and all related documents to be in the English language.
16. Governing law
The Agreement (including any non-contractual matters) is governed by the law of England and Wales.
17. Jurisdiction
Disputes can be submitted to the jurisdiction of the courts of England and Wales or, where the Customer lives in Scotland or Northern Ireland, in the courts of respectively Scotland or Northern Ireland.