1. General Terms
These are the General Terms of Silverfish CSR. Together with a signed Deal Sheet, these General Terms form the Contract between the parties for the provision of DigitalRG. The terms of the Deal Sheet take precedence over the terms of these General Terms. Any Special Terms in Part 4 of the Deal Sheet shall take precedence over both these General Terms and the rest of the Deal Sheet.
2. Silverfish CSR Obligations
2.1. Silverfish CSR shall make DigitalRG available to the Client for the Term for the Client’s use under the licence granted in paragraph 3.1, subject to the terms of the Contract.
2.2. Silverfish CSR shall use its reasonable endeavours to host, support and maintain DigitalRG during the Term through the provision of an email helpdesk.
3.1. Silverfish CSR hereby grants to the Client a non-exclusive, revocable, non-transferrable licence to use DigitalRG during the Term. For the purposes of this licence, ‘use’ means use by the Client and its End Users of DigitalRG for its internal business purposes.
3.2. The licence granted in paragraph 3.1 only covers a single entity and shall not be considered granted to any subsidiary or holding undertaking (as defined in the Companies Act 2006) or other company in the Client’s group.
3.3. Silverfish CSR hereby grants to the Client a non-exclusive, revocable, non-transferrable licence to use the DigitalRG Brand solely to promote DigitalRG to End Users.
3.4. Any services beyond the scope of the Contract provided by Silverfish CSR shall, with the Client’s prior written approval, be charged at Silverfish CSR’s day rates.
4. Use of DigitalRG
4.1. During the Term, the Client shall: (a) ensure it has suitable computer hardware, software and internet connection in order to access and use DigitalRG; (b) effect and maintain adequate security measures to safeguard the DigitalRG from access or use by any unauthorised person; (c) immediately notify Silverfish CSR if it becomes aware of any unauthorised use of DigitalRG by any person; and (d) procure that all End Users agree to and comply with the DigitalRG Terms. The Client shall be liable for any breach of the DigitalRG Terms by the End Users.
4.2. The Client agrees that in relation to DigitalRG the Client shall not: (a) sublicense, lease, transfer, sell, charge, assign, rent or otherwise use DigitalRG, other than for DigitalRG’s intended purpose; (b) unless otherwise permitted by applicable law, alter, modify, adapt, translate or otherwise change the whole or any part of DigitalRG in any way whatsoever, nor permit the whole or any part of DigitalRG to be combined with or become incorporated in any other software nor decompile, disassemble or reverse engineer the same nor attempt to do any such things; (c) access, transmit, create or store any virus, worm, trojan horse, bot or other destructive or contaminating program using DigitalRG; (d) instruct, assist or advise any other person to perform the acts prohibited in (a) to (c) above.
4.3. The Client acknowledges that: (a) DigitalRG has not been prepared to meet the Client’s individual requirements and that it is therefore the responsibility of the Client to ensure that the facilities and functions of DigitalRG meet its requirements. Silverfish CSR shall not be liable for any failure of DigitalRG to provide any facility or function not specified in the Deal Sheet; (b) Silverfish CSR gives no warranty or guarantee as to the use and uptake of DigitalRG by End Users; (c) Silverfish CSR is constantly developing and refining its technology, therefore DigitalRG is provided to Clients as a service on an ‘as is’ basis.
4.4. The Client acknowledges that it is liable for all content which it sends or uploads using the DigitalRG including liability for defamation, liability under data protection legislation, liability for infringement of third party intellectual property rights and liability under any other applicable law. The Client is also liable for the security and use of all information which is collected from End Users via DigitalRG.
4.5. Silverfish CSR reserves the right to remove any content which is sent, received, downloaded or uploaded using DigitalRG.
5.1. The Client shall pay the Fees to Silverfish CSR in accordance with this paragraph 5.
5.2. Silverfish CSR shall invoice the Client on the date the Deal Sheet is signed by both parties and, if the Contract continues, each year upon the anniversary of the Start Date.
5.3. Fees under the Contract are: (a) due to be paid within 14 days of receipt by the Client of Silverfish CSR’s invoice which may be provided in advance of the anniversary of the Start Date after the first year; (b) payable in pounds sterling; (c) non-cancellable and non-refundable; and (d) exclusive of Value Added Tax (or any other applicable sales taxes); and (e) payable to the Silverfish Bank Account.
5.4. If any sum payable under the Contract is not paid within 7 days after the due date then, without prejudice to Silverfish CSR’s other rights and remedies, Silverfish CSR reserves the right to suspend access to DigitalRG and/or terminate the Contract under paragraph 9.2(a) for a material breach.
5.5. In the event of late or default payment of the Fees, Silverfish CSR reserves the right to charge interest accruing daily at the rate of 4% per year over the then current base rate of HSBC Bank Plc (UK) from time to time, commencing from the due date until the total sum due has been paid in full (whether before or after judgment).
5.6. Silverfish CSR may increase any or all of its Fees from time to time by providing written notice to the Client 90 days before any change to the Fees. Silverfish CSR shall not increase its Fees under this paragraph 5.6 by more than 5% in any calendar year.
6. Warranties and undertakings
Each party warrants and undertakes to the other that: (a) it has the necessary authority to enter into the Contract; (b) the performance of the Contract by that party will not breach any contractual or other obligation owed by that party to any other person, nor any rights of any other person or any other legal provision; and (c) it is acting on its own behalf and not for the benefit of any other person.
7. Intellectual Property and Third Party Claims
7.1. DigitalRG (and the copyright, and other intellectual property rights of whatever nature in DigitalRG including any modifications made thereto) are and shall remain the property of Silverfish CSR and its licensors including all such rights in relation to all materials and tools available as part of DigitalRG.
7.2. The Data shall be the property of Silverfish CSR. Silverfish CSR grants the Client a licence to use the Data during the Term.
7.3. The Client shall immediately notify Silverfish CSR if any claim or demand is made or action brought against the Client for infringement or alleged infringement of any third party intellectual property rights (a “Third Party Claim”) as a result of its use of DigitalRG. Silverfish CSR shall at its own expense conduct any litigation or negotiation arising out of or in connection with Third Party Claims and the Client hereby agrees to grant to Silverfish CSR exclusive control of any such litigation and such negotiations.
7.4. The Client shall, at the request of Silverfish CSR, give Silverfish CSR all reasonable assistance for the purpose of contesting any Third Party Claim. The Client shall not make any admissions (save where required by court order or governmental regulations) which may be prejudicial to the defence or settlement of any Third Party Claim without Silverfish CSR’s approval.
7.5. As a result of a Third Party Claim, Silverfish CSR may: (a) modify DigitalRG; (b) procure a licence to use and continue to provide DigitalRG in its current form; or (c) terminate the Contract under paragraph 9.3(c).
7.6. This paragraph 7 shall not apply to any Third Party Claim in respect of: (a) any use by or on behalf of the Client of DigitalRG in a manner not reasonably to be inferred from the specification or requirements of the Client; or (b) the Client’s unreasonable refusal to accept modified version of DigitalRG pursuant to paragraph 7.5(a).
8. Data Protection
8.1. For the purposes of this paragraph 8, the terms ‘Data Controller’, ‘Data Processor’, ‘Personal Data’ and ‘Processing’ shall have the meanings given to them in the Data Protection Act 1998.
8.2. It is the intention of the parties that Silverfish CSR shall be the Data Processor and the Client shall be the Data Controller in respect of any Personal Data collected, used or stored by DigitalRG.
8.3. The Client shall ensure: (a) it is entitled to upload, use and control the processing of any Personal Data which it does onto DigitalRG (having obtained all relevant consents); (b) Silverfish CSR may lawfully use, process and transfer Personal Data uploaded or used on DigitalRG in accordance with Silverfish CSR’s provision of DigitalRG; and (c) Silverfish CSR is entitled to transfer and store all relevant Personal Data uploaded by the Client outside the EEA if required.
8.4. The parties shall take appropriate technical and organisational measures against unauthorised/unlawful processing of Personal Data and against the accidental loss/destruction/damage to, Personal Data to ensure a level of security appropriate to: (a) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and (b) the nature of the data to be protected.
9. Term and Termination
9.1. The Contract shall, unless terminated early in accordance with this paragraph 9 continue for the Term (as defined and as renewed in accordance with Part 3.4 of the Deal Sheet).
9.2. Either party may terminate the Contract at any time immediately on giving notice in writing to the other party if the other party commits a material breach of any term of the Contract and (in the case of a breach capable of being remedied) shall have failed, within 14 days after the receipt of a request in writing to do so, to remedy the breach.
9.3. Silverfish CSR may terminate the Contract at any time immediately on giving notice in writing to the Client if: (b) the Client challenges the validity of, or infringes any of Silverfish CSR’s intellectual property rights in DigitalRG; or (b) as the result of a Third Party Claim Silverfish CSR is unable to continue to offer DigitalRG.
10. Consequences of Termination
10.1. Immediately upon the termination or expiry of the Contract: (a) all licences granted to the Client under the Contract shall come to an end and the Client shall cease all activities authorised under the Contract; (b) the Client shall cause DigitalRG to be erased from all of its hardware and software and shall certify to Silverfish CSR in writing it has done so if so requested; and (c) the Client shall immediately pay to Silverfish CSR all Fees due.
10.2. Any termination or expiry of the Contract (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination. There shall be no refund of any element of the Fees by reason of any termination by the Client.
11.1. The parties acknowledge and agree that the substance and terms of the Contract are confidential, that, except as set out in paragraph 11.5, they shall remain confidential and shall not be subject to any public announcement or disclosure with or to any third party.
11.2. The parties may have access to confidential information owned or controlled by the other party. With respect to all such information to be kept confidential pursuant to this Clause, each party agrees: (a) not to provide or make available such information disclosed by or acquired from the other party (“disclosed information”) in any form to any person other than those employees, agents or sub-contractors of the receiving party who have a need to know consistent with the receiving Party’s authorised use of disclosed information; (b) not to use or reproduce disclosed information except for use reasonably necessary for the performance of the Contract; (c) not to publish or disclose disclosed information to third parties other than as expressly permitted herein, without the disclosing party’s prior written consent; and (d) to return or destroy all disclosed information which is in written or graphic form at the conclusion of its authorised use including all electronic materials such as emails, spreadsheets and databases.
11.3. The obligations of confidentiality under this Clause shall not apply to any information or material which the recipient Party can prove was: (a) already known to it prior to its receipt thereof from the disclosing party; (b) subsequently disclosed to it lawfully by a third party who did not obtain the same (whether directly or indirectly) from the disclosing party; or (c) in the public domain at the time of receipt by the recipient party or has subsequently entered into the public domain other than by reason of the breach of the provisions of this Clause or of any obligation of confidence owed by the recipient party or by any of its subcontractors or sub-licensees to the disclosing party.
11.4. The obligations of confidentiality set out in this paragraph 11 shall last for 3 years from the end of the Term.
11.5. Notwithstanding the rest of this paragraph 11, the Client grants Silverfish CSR a royalty-free licence to use the Client’s trade marks (whether registered or unregistered) throughout the world for the sole purpose of issuing publicity in respect of Silverfish CSR’s provision of services to the Client. Silverfish CSR shall immediately withdraw any such publicity upon written notice of the Client.
12. Limitations and Exclusions of Liability
12.1. Nothing in the Contract shall operate to exclude or limit the parties’ liability for: (a) death or personal injury caused by their negligence; (b) their fraud or fraudulent misrepresentation; or (c) any other matter for which liability cannot be excluded or limit under law.
12.2. Subject to paragraph 12.1, the Client acknowledges that DigitalRG provides it with access to content and tools in relation to the promotion of responsible gaming and gambling to help the Client further build its knowledge and assist it in this area. The Client uses DigitalRG entirely at its own risk. The Client must evaluate, and bear all risks associated with the use of Digital RG and any reliance it places on the information it provides. Silverfish CSR does not purport to give advice to the Client of any kind on what it should or should not do in relation to gambling law compliance. Silverfish simply provides the Client with tools and content to help it make such decisions. The Client remains responsible for any decision that it makes in using DigitalRG, and in taking such decisions regard must be had to the restrictions on the scope of the Services and to the large number of other factors of which the Client and its chosen advisers are, or should be aware from sources other than DigitalRG in respect of the promotion of responsible gaming and gambling.
12.3. Subject to paragraph 12.1:
(a) Silverfish CSR shall not in any circumstances have any liability for any losses or damages which may be suffered by the Client (or any person claiming under or through the Client including any End Users), whether directly, indirect, immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories: (i) indirect, consequential or special damages even if Silverfish CSR was aware of the circumstances in which such damage could arise; (ii) loss of profits; (iii) loss of anticipated savings; (iv) loss of business opportunity; (vi) wasted management time; (v) loss of goodwill; (vi) loss or corruption of content or data, or losses or damage to any computer software, hardware or system; (vii) the failure of the Client’s software, hardware or connection to the Internet; or (viii) loss of customers;
(b) to the fullest extent permitted by law Silverfish CSR excludes all representations, warranties, conditions, terms, undertakings, and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise that are not expressly set out in the Contract; and
(c) the total aggregate liability of Silverfish CSR to the Client is limited to the amount of Fees Silverfish CSR has received from the Client in cleared funds in the 12 month period prior to the action giving rise to liability.
12.4. Silverfish CSR shall not be responsible for any breach of the Contract caused by circumstances beyond Silverfish CSR’s reasonable control.
12.5. Subject to paragraph 12.1, the Client acknowledges that the DigitalRG is provided to the Client on an ‘as is’ basis and that DigitalRG shall not be error free and uninterrupted, nor shall Silverfish CSR correct all errors in DigitalRG and that DigitalRG may contain viruses, bugs, worms, trojan horses, bots and other harmful and destructive components, although Silverfish CSR shall use its reasonable endeavours to correct any such errors as soon as practicable.
13. Restrictive Covenant
The Client shall not during the Term and for a period of one year thereafter, either directly or indirectly, develop, market or sell any computer software or web application which has similar or identical functionality as DigitalRG.
14. General: (a) Dealings in Rights and Obligations
Silverfish CSR may at any time assign, novate, charge or deal in any other manner with any or all of its rights and obligations under the Contract. The Client may not at any time sub-licence, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under the Contract; (b) Waiver of remedies: No failure by either party to exercise, and no delay in exercising, any right or remedy under the Contract, shall operate as a waiver of such right or remedy; (c) Entire agreement: The Contract sets out the entire agreement between Silverfish CSR and the Client in relation to its subject matter; (d) No Partnership or Agency: Nothing in the Contract establishes any partnership or joint venture between any of the parties, constitutes any party the agent of another party; (e) Notices: All notices which are required to be given under the Contract shall be given by email to the addresses provided in the parties’ Contact Details in Part 2 of the Deal Sheet and shall be deemed to have been served 2 working days after dispatch; (f) Severability: Notwithstanding that the whole or any part of any provision of the Contract may prove to be illegal or unenforceable the other provisions of the Contract and the remainder of the provision in question shall remain in full force and effect; (g) Third Parties: The parties confirm their intent not to confer any rights on any third parties by virtue of the Contract. Accordingly the Contracts (Rights of Third Parties) Act 1999 (and any similar legislation anywhere in the world) shall not apply to the Contract; (h) Governing Law and Jurisdiction: The Contract, and any dispute arising out of or in connection with the Contract, shall be governed by and construed in accordance with the laws of England and Wales. Any dispute or claim arising out of or in connection with the Contract shall be subject to the jurisdiction of the courts of England and Wales.
15. Definitions and Interpretation
15.2. Interpretation: In the Contract: (a) reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended extended or re-enacted; (b) any reference to a party to the Contract includes a reference to his successors in title and permitted assigns; (c) any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms; and (d) capitalised terms used in the Contract (as set out in the definitions and elsewhere) shall have the same meanings throughout the Contract.