CyberScore™ Terms and Conditions of Service

Last updated: 21 May 2018

This agreement is between: (1) you, the person or organisation authorised to use CyberScore (User); and (2) us, XQ Digital Resilience Limited (company registration number: 09184608, registered office: Unit H The Courtyard, Tewkesbury Business Park, Tewkesbury, England, GL20 8GD) trading as XQ Cyber (XQ).

This agreement describes how you may use CyberScore and is made up of these terms and conditions, the Set-up Email (as defined below, if applicable) and our Privacy Policy. This agreement starts from the earliest date you tick a box or click on a button (or something similar) to confirm that you accept this agreement during the CyberScore sign up process, or when you use CyberScore (or any part of it) (Effective Date) and such action shall constitute acceptance of all the elements of this agreement.

If you do not accept this agreement you will not be able to use CyberScore.

We may change these terms and conditions or our Privacy Policy at any time. We will make reasonable efforts to communicate any changes to you via CyberScore or by sending an email to you and continued use of CyberScore by you in these circumstances will be deemed acceptance of all such changes.

1.Definitions and Interpretation

  1. The definitions and rules of interpretation in this clause apply in this agreement:

Account Owner

an individual within an organisation who manages and oversees the account on behalf of his/her organisation;

Applicable Laws

means the laws of any member of the European Union or any laws applicable to XQ with regard to the User and the processing of personal data;

Business Day

a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;

Change of Control

the beneficial ownership of more than 50% of the issued share capital of a  company or the legal power to direct or cause the direction of the general management of the company;

Credit

a credit that can be purchased by a Customer for the Credit Fee and redeemed for CyberScore Intelligence Services;

Credit Allowance

an allowance of Credits (if any) which can be consumed by a Customer prior to payment by either a Customer or a Partner, as applicable;

Credit Fee

the fixed amount payable by a Customer for a Credit on a per Host basis as stated within CyberScore, and increased in accordance with this agreement;

Commencement Date

the commencement date specified in the Set-Up Email on which a Partner’s licence to use CyberScore begins;

Confidential Information

information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 12;

Customer

a type of User who runs Scans on its systems and may procure CyberScore Intelligence Services;

CyberScore

the provision of Scans, CyberScore Intelligence Services and associated services supplied by XQ to the User under this agreement via www.xqcyberscore.com or any other website notified to the User by XQ from time to time;

CyberScore Intelligence Services

the elements of CyberScore for which Users must redeem Credits or Partner Credits to access which includes without limitation identification of vulnerabilities, Get Well Plans, Scores, Reporting, Ratings, Technical Reports and Patch –Reports, recommendations on CyberEssentials adherence, associated advice/analysis of scans and MI; 

Data controller, data processor and personal data

have the meanings as set out in the Data Privacy Legislation;

Data Privacy Legislation

means all applicable laws and regulations relating to the processing of personal data and privacy in any relevant jurisdiction including with limitation the GDPR, the Privacy and Electronic Communications Regulations, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699) and any order, guidelines and instructions issued by a relevant national or judicial authority in England or the European Union;

GDPR

means the General Data Protection Regulation (CEU 2016/679) and any national implementing laws, regulations and secondary or related legislation (including as transposed into domestic legislation);

Host

an individual computer which stores a website or other data that can be accessed over the Internet or which provides other services to a network;

Licence Fee

the fee payable by the Partner to access and use CyberScore as set out in the Set- up Email, and as may be increased in accordance with this agreement from time to time;

MI

the information extracted during, by and from the Scan for consumption by a Partner;

Minimum Term

the minimum period of time in which a Partner must subscribe to CyberScore as set out in the Set-up Email, or otherwise twelve calendar months;

Minimum Credit Subscription

a minimum number of Partner Credits which must be purchased annually or as otherwise set out in the Set-Up Email  by a Partner;

Partner

a type of User who requires access to MI from Customers in order to monitor and assess their cyber security effectiveness. For example a Partner may use CyberScore to evaluate its supply chain, customers or associated third parties;

Partner Credit

a credit that can be purchased by a Partner for the Partner Credit Fee and redeemed by a Customer for CyberScore Intelligence Services;

Partner Credit Fee

the fixed amount payable by a Partner for a Partner Credit as set out in the Set-up Email, and increased in accordance with this agreement;

Renewal Term

the period specified in the Set-up Email or, if none is specified, twelve (12) calendar months;

Scan

a scan of such Hosts as a Customer may specify to review and identify security vulnerabilities, which is provided free of charge;

Set-up Email

an email from XQ outlining the details of the licence including Commencement Date, Minimum Term, Renewal Term, Licence Fee, Partner Credit Fee and Minimum Credit Subscription, and containing a link to complete the account set-up which forms part of this agreement;

Sub-processors

means a natural or legal person, public authority, agency or other body contracted by XQ to process personal data for the purpose of carrying out a specific processing activity on behalf of the User;

Team Members

an individual who is authorised by an Account Owner to access an organisation’s CyberScore account;

User

a Customer or Partner, as applicable;

User Data

the data inputted by the User or accessed through a Host by XQ in accordance with this agreement for the purpose of using CyberScore or facilitating a User's use of CyberScore; and

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. Clause headings shall not affect the interpretation of this agreement.
  2. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
  3. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
  4. A reference to a statute or statutory provision is a reference to it as it is in force as amended, extended or re-enacted from time to time and includes all subordinate legislation made from time to time under that statute or statutory provision.
  5. A reference to writing or written includes email but not fax.
  6. References to clauses are to the clauses of this agreement.

 

2.Users

  1. XQ grants to Users a non-exclusive, non-transferable, revocable right to use CyberScore subject to the terms and conditions of this agreement.
  2. Users shall:
    1. use all reasonable endeavours to prevent any unauthorised access to, or use of, CyberScore and, in the event of any such unauthorised access or use, promptly notify XQ. Passwords shall be kept confidential and secure and changed on a frequent basis.
    2. provide XQ with all necessary:
      1. co-operation in relation to this agreement; and
      2. access to such information as may be reasonably required by XQ in order to provide CyberScore, including but not limited to User Data, security access information and configuration services;
    3. comply with all applicable laws and regulations with respect to its activities under this agreement;
    4. obtain and shall maintain all necessary licences, consents, and permissions necessary for XQ, its contractors and agents to perform their obligations under this agreement, including without limitation third party licence approvals and consents for systems and IP addresses to be tested.
    5. ensure that its network and systems comply with the relevant specifications provided by XQ from time to time; and
    6. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to XQ's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the User's network connections or telecommunications links or caused by the internet.
  3. Users shall not:
    1. access, store, distribute or transmit any Viruses, or any material during the course of its use of CyberScore that:
      1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
      2. facilitates illegal activity;
      3. depicts sexually explicit images;
      4. promotes unlawful violence;
      5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
      6. in a manner that is otherwise illegal or causes damage or injury to any person or property;

and XQ reserves the right, without liability or prejudice to its other rights to the User, to disable the User's access to CyberScore and any material that breaches the provisions of this clause.

  1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
    1. and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of CyberScore in any form or media or by any means; or
    2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human- perceivable form all or any part of CyberScore;
  2. access all or any part of CyberScore in order to build a product or service which competes with CyberScore; or
  3. subject to clause 23.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit (save as expressly permitted under this agreement or agreed in writing in advance by XQ), or otherwise make CyberScore available to any third party.

 

3.Customers

  1. Customers can sign-up for CyberScore at any time by providing their contact and organisational details as set out in the Customer Registration Form. Customers are not subject to minimum term commitments and may cease using CyberScore at any time but forfeit outstanding Credits.
  2. Customers may use CyberScore for their own business use or as part of a service provision of others (i.e. information security consultancy outsourcing) provided that they have express and demonstrable consent of the owner of the equipment/data/infrastructure that they are scanning.
  3. Only one CyberScore account may be opened for an organisation. The first individual to sign-up to use CyberScore for an organisation will automatically be registered as the Account Owner. Account Owners can invite others to use CyberScore for its organisation and view Scans and Additional Features by setting them up as Team Members. Multiple Users can be given Account Owner status, which is managed online by Customers using the CyberScore account. If an Account Owner leaves or intends to leave an organisation (on a permanent or temporary basis) they must reassign the role of Account Owner to another Team Member. It is the Customer’s sole responsibility to ensure that there is always at least one active Account Owner.
  4. There is no charge for Customers to run Scans, which can be done by Account Owners or Team Members.
  5. Account Owners can purchase the CyberScore Intelligence Services relating to a Scan by redeeming through CyberScore:
    1. enough Credits to cover the number of Hosts subjected to the Scan; or
    2. a Partner Credit.
  6. Account Owners may grant access through CyberScore to Partners to view MI arising from a particular Scan. Where a:
    1. Credit is used to purchase the CyberScore Intelligence Services, multiple Partners may be granted access to the same MI by an Account Owner at the Account Owner’s discretion; or
    2. Partner Credit has been redeemed for CyberScore Intelligence Services to which the MI relates only that Partner may be granted access to that MI. If additional Partners want access to the same MI paid for by a Partner Credit, they also needs to redeem a Partner Credit against that Scan for access.

 

The Customer acknowledges that once an Account Owner provides a Partner with access to MI from a particular Scan it cannot be revoked.

 

4.Partners and MI

  1. Partners can create a CyberScore account at any time by contacting XQ to subscribe to CyberScore and XQ will issue Partners with a Set-up Email. The Set-up Email may include special terms which apply in addition to this agreement and, in the case of conflict the Set-up Email shall take precedence in relation to the conflicting subject matter only. Partners may only use CyberScore for their own internal business purposes.
  2. Partners subscriptions start on the Commencement Date and continue for the Minimum Term and are automatically renewed for the Renewal Term unless:
    1. either party notifies the other party of termination, in writing, at least thirty (30) days before the end of the Minimum Term or any Renewal Term, in which case this agreement shall terminate upon the expiry of the applicable Minimum Term or Renewal Term; or
    2. otherwise terminated in accordance with the provisions of this agreement.
  3. XQ will invoice the Partner for the Licence Fee on or around the Commencement Date and each anniversary thereof.
  4. Partners may purchase Partner Credits at any time for the Partner Credit Fee through CyberScore by credit card, bank transfer or invoice. Partner Credits will be awarded to a Partner’s account following receipt of the Partner Credit Fee by XQ in cleared funds. Where payment is made by invoice, there may be a minimum number of Partner Credits which must be purchased by a Partner.
  5. If a Partner has a Minimum Credit Subscription:
    1. subject to clauses 4.4.2 and 4.4.3, the fee for the minimum number of Partner Credits will be invoiced annually in advance on or around the Commencement Date and each anniversary thereof;
    2. if a Partner wishes to decrease its Minimum Credit Subscription it must notify XQ in writing at least sixty (60) days before the end of the Minimum Term or Renewal Term, as applicable. XQ will advise the Partner of the revised Partner Credit Fee for the Minimum Credit Subscription and the Partner’s subscription will automatically renew at the reduced Minimum Credit Subscription level; or
    3. if the Partner purchases Partner Credits in addition to its Minimum Credit Subscription at any time during the Minimum Term or a Renewal Term, at the next renewal the Minimum Credit Subscription shall automatically renew at the cumulative amount of all Partner Credits purchased in the previous Minimum Term or Renewal Term (as applicable).
  6. XQ can increase the Licence Fee or the Partner Credit Fee to take effect at the end of the Minimum Term or any Renewal Term by providing not less than sixty (60) days written notice to the Partner in advance of the anniversary of the Commencement Date.
  7. Partners may grant Partner Credits to any number of Customers as it so wishes. Partner Credits can be assigned on:
    1. an adhoc basis to Customers as and when required;
    2. a set regular basis to facilitate weekly/monthly/quarterly/annual MI reports for Scans; or
    3. an unlimited basis whereby a Partner will pay for all MI reports created by a particular Customer subject to express agreement of a Credit Allowance.

 

5.Credits, Partner Credits and Credit Allowance

  1. Credits can be purchased by Customers through CyberScore for the Credit Fee at any time by credit card, bank transfer or invoice. Credits will be awarded to a Customer’s account following receipt of the Credit Fee by XQ in cleared funds.
  2. XQ may increase the Credit Fee at any time by giving Customers not less than thirty (30) days prior written notice. One Credit relates to one Host, so multiple Credits will need to be redeemed for access to CyberScore Intelligence Services if the Scan relates to multiple Hosts.
  3. Where payment is made by invoice, there may be a minimum number of Credits which must be purchased by a Customer.
  4. Credits and Partner Credits are non-refundable and valid for a period of 12 calendar months from the date of purchase only. Any unused Credits and Partner Credits will be automatically removed from a Users account at the end of their validity period.
  5. XQ may, in its absolute discretion, set up a Credit Allowance for a particular Customer permitting it to redeem Credits in advance of payment. Credit Allowances may be reduced or revoked at any time by XQ. XQ may raise an invoice for Credit Allowance re-payment at any time.

 

6.CyberScore

  1. XQ shall use commercially reasonable endeavours to make CyberScore available 24 hours a day, seven days a week, provided that Users acknowledge that (as for every live service) emergency, planned and unscheduled maintenance will

 

be required from time to time. XQ will use reasonable endeavours to notify Users in advance of maintenance and may publicise from time to time a fixed planned maintenance window.

  1. Users acknowledge that use of CyberScore may create interruptions and detrimental performance on its computer systems and internet connections due to the nature of the services. Users should take full back-up copies of all data in advance of use of CyberScore in case of the unlikely event occurring in which CyberScore may cause damage and/or corruption.
  2. To access the CyberScore Intelligence Services Account Owners must either:
    1. purchase sufficient Credits;
    2. redeem pre-paid Credits;
    3. redeem a Partner Credit; or
    4. have sufficient monetary value in its Credit Allowance remaining to cover the cost of the Credits required for the specific CyberScore Intelligence Services.
  3. XQ shall provide support services to Users which can be accessed via [email protected] Users acknowledge that support may only be available within standard business hours of 09.00 – 17.00 GMT/BST on Business Days.

 

7.User Data

  1. Users own all right, title and interest in and to all of the User Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the User Data.
  2. Both parties will comply with all applicable requirements under Data Privacy Legislation and this agreement.  This addendum is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Privacy Legislation.
  3. The parties acknowledge that for the purposes of the Data Privacy Legislation and this agreement, the User is the data controller and XQ is the data processor, or the sub-processor where the User is a data processor.
  4. Without prejudice to the generality of clause 7.2, the User:
    1. warrants and represents that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to XQ for the duration and purposes of this agreement;
    2. warrants and represents that all instructions given to XQ for processing of personal data are lawful and as a minimum include the nature and purpose of the processing, type of personal data and categories of data subjects to whom the personal data is related; and
    3. acknowledges that as data controller it is solely responsible for determining the lawful processing condition upon which it shall rely in providing instructions to XQ for the purpose of carrying out the relevant services under the Existing Agreement.
  5. Without prejudice to the generality of 7.2, XQ shall, in relation to any personal data processed in connection with the performance by XQ of its obligations as data processor or sub-processor under this agreement:
    1. process that personal data only on the written instructions of the User unless XQ is required by any Applicable Laws.  Where XQ is relying on Applicable Laws as the basis for processing personal data, XQ shall promptly notify the User of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit XQ from so notifying the User;
    2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the User, to protect against unauthorized or unlawful processing of personal data and against accidental loss or destruction of, damage to, personal data, appropriate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organizational measures adopted by it);
    3. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
    4. not transfer any personal data outside of the European Economic Area unless the prior written consent of the User has been obtained and the following conditions are fulfilled:
      1. the User or XQ has provided appropriate safeguards in relation to the transfer;
      2. the data subject has enforceable rights and effective legal remedies;
      3. XQ complies with its obligations under the Data Privacy Legislation by providing an adequate level of protection to any personal data that is transferred;
      4. XQ complies with reasonable instructions notified to it in advance by the User with respect to the processing of the personal data;
    5. assist the User, at the User’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Privacy Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
    6. notify the User without undue delay on becoming aware of a personal data breach;
    7. at the written direction of the User, delete or return personal data and copies thereof to the User on termination of the agreement unless required by Applicable Law to store the personal data; and
    8. maintain complete and accurate records and information to demonstrate its compliance with this clause 7 and allow for audits by the User or the User’s designated auditor.
  6. The User provides their consent for XQ to use Sub-processors in the delivery of the services under this agreement. XQ shall enter into a written agreement with such Sub-processors incorporating terms which are substantially the same as those set out in this clause 7.  As between the User and XQ, XQ shall remain fully liable for all acts and omissions of any Sub-processor appointed by it pursuant to this clause 7.6.  Where required by law, XQ shall inform the User of any intended changes concerning the additional or replacement of a Sub-processor with access to personal data and give the User the opportunity to object to such changes.
  7. Either party may, at any time of not less than thirty (30) days’ notice, revise this clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certificate scheme (which shall apply when replaced by attachment to this agreement).

 

8.XQ's obligations

  1. XQ:
    1. undertakes that CyberScore will be provided with reasonable skill and care. CyberScore is intended to verify and assist in identifying security issues and vulnerabilities. Use of CyberScore does not guarantee, promise or warrant that a User’s system will be immune to attack or unauthorised access. Any reliance placed on the outcome or use of CyberScore or CyberScore Intelligence Services is solely at the Users risk and does not constitute professional advice or recommendations.
    2. does not warrant that the User's use of CyberScore will be uninterrupted or error-free or that CyberScore, and/or the information obtained by the User through CyberScore (including the CyberScore Intelligence Services) will meet the User's requirements; and
    3. 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 Users acknowledge that CyberScore may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
  2. This agreement shall not prevent XQ from entering into similar agreements with third parties, or from independently developing, using, selling or licensing products and/or services which are similar to those provided under this agreement.
  3. XQ warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.

 

9.Third party providers

Users acknowledge that CyberScore 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. XQ makes no representation 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 the User, with any such third party. Any contract entered into and any transaction completed via any other third party website is between the User and the relevant third party, and not XQ. XQ recommends that the User refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. XQ does not endorse or approve any third-party website nor the content of any of the third-party website made available via CyberScore.

 

10.Payment Terms

  1. Users shall pay each invoice within thirty (30) days after the date of such invoice.
  2. If a User requires invoices to be issued referencing a specific purchase order number it is the User’s sole responsibility to request and provide the relevant purchase order number to XQ in advance, and in any event at least seven (7) days prior to the issue of an invoice. XQ shall not be prevented from issuing an invoice, and an invoices validity shall not be questioned, if a User does not provide a purchase order number in accordance with this clause.
  3. If XQ has not received payment within thirty (30) days after the due date, and without prejudice to any other rights and remedies of XQ:
    1. XQ may, without liability to the User, disable the User's password, account and access to all or part of CyberScore and XQ shall be under no obligation to provide any or all of CyberScore while the invoice(s) concerned remain unpaid; and
    2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to the greater of: the maximum recoverable under applicable law; or, eight percent (8%) over the then current base lending rate of The Bank of England from time to time. Interest shall accrue from the due date and continues until the debt is fully paid, whether before or after judgment.
  4. All amounts and fees stated or referred to in this agreement:
    1. shall be payable in pounds sterling;
    2. are, subject to clause 14.4.2, non-cancellable and non-refundable;
    3. are exclusive of value added tax, which shall be added to XQ's invoice(s) at the appropriate rate.
  5. Where a User makes a payment on a credit card it will be settled using a gateway provided by a third party. If a User makes an unjustified chargeback, then it will be liable to pay to XQ, within seven (7) days following written request:
    1. an amount equal to the amount of the chargeback;
    2. all third party expenses incurred by us in relation to the charge back (including charges made by XQ’s bank or the User’s bank/credit card company);
    3. a reasonable administration fee; and
    4. all XQ’s reasonable costs, losses and expenses incurred in recovering the amounts subject to the charge back (including without limitation legal fees and debt collection fees).

 

11.Proprietary rights

  1. Users acknowledges and agrees that XQ and/or its licensors own all intellectual property rights in CyberScore. Except as expressly stated herein, this agreement does not grant Users any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of CyberScore.
  2. XQ confirms that it has all the rights in relation to CyberScore that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

 

12.Confidentiality

  1. Users and XQ may be given access to Confidential Information in order to perform its obligations under this agreement. Confidential Information shall not be deemed to include information that:
    1. is or becomes publicly known other than through any act or omission of the receiving party;
    2. was in the receiving party’s lawful possession before the disclosure;
    3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
    4. is independently developed by the receiving party, which independent development can be shown by written evidence; or
    5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
  2. Users acknowledge that details of CyberScore, and the results of any performance tests of CyberScore including CyberScore Intelligence Services, constitute XQ's Confidential Information.
  3. The parties shall hold Confidential Information in confidence and, unless required by law, 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. The parties shall take all reasonable steps to ensure that any 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.
  4. Users shall not make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of XQ (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
  5. The above provisions of this clause 12 shall survive termination of this agreement, however arising.

 

13.Indemnity

  1. XQ shall defend the User, its officers, directors and employees against any claim that CyberScore infringes any United Kingdom patent, copyright, trade mark, database right or right of confidentiality effective as of the Effective Date, and shall indemnify the User for any amounts awarded against the User in judgment or settlement of such claims, provided that:
    1. XQ is given prompt notice of any such claim;
    2. the User provides reasonable co-operation to XQ in the defence and settlement of such claim, at XQ's expense; and
    3. XQ is given sole authority to defend or settle the claim.
  2. In the defence or settlement of any claim, XQ may procure the right for the User to continue using CyberScore, replace or modify CyberScore so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this agreement on two (2) Business Days' notice to the User without any additional liability or obligation to pay liquidated damages or other additional costs to the User.
  3. In no event shall XQ, its employees, agents and sub-contractors be liable to the User to the extent that the alleged infringement is based on:
    1. a modification of CyberScore by anyone other than XQ; or
    2. the User's use of CyberScore in a manner contrary to the instructions given to the User by XQ; or
    3. the User's use of CyberScore after notice of the alleged or actual infringement from XQ or any appropriate authority.
  4. The foregoing and clause 14.4.2 states the User's sole and exclusive rights and remedies, and XQ's (including XQ's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

 

14.Limitation of liability

  1. This clause 14 sets out the entire financial liability of XQ (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the User:
    1. arising under or in connection with this agreement;
    2. in respect of any use made by the User of CyberScore and or any part of them; and
    3. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
  2. Except as expressly and specifically provided in this agreement:
    1. the User assumes sole responsibility for results obtained from the use of CyberScore by the User, and for conclusions drawn from such use. XQ shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to XQ by the User in connection with CyberScore, or any actions taken by XQ at the User's direction;
    2. XQ accepts no liability or responsibility for interruptions and/or detrimental performance of a User’s computer systems and internet connections arising from usage of CyberScore or any damage and/or corruption that may occur to User’s data or information;
    3. 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
    4. CyberScore is provided to the User on an "as is" basis.
  3. Nothing in this agreement excludes the liability of XQ for:
    1. death or personal injury caused by XQ's negligence; or
    2. fraud or fraudulent misrepresentation; or
    3. any other liability which it is not possible to exclude liability for under English law.
  4. Subject to clause 14.1.3 and clause 14.2.4:
    1. XQ shall not 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
    2. XQ's total aggregate liability in contract (including in respect of the indemnity at clause 13.1), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited the greater of £500 or the total amount paid to XQ for CyberScore in the twelve (12) calendar months immediately preceding the date on which the claim arose.

 

15.Termination for Cause

  1. 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:
    1. 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 thirty (30) days after being notified in writing to do so;
    2. the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
    3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 ;
    4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
    5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
    6. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
    7. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
    8. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
    9. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within fourteen (14) days;
    10. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is  subject that has an effect equivalent or similar to any of the events mentioned in clause 15.1.3 to clause

15.1.9 (inclusive); or

  1. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
  2. Without affecting any other right or remedy available to it, XQ may terminate this agreement if:
    1. the User fails to pay any amount due under this agreement on the due date for payment and remains in default not less than thirty (30) days after being notified in writing to make such payment; or
    2. there is a Change of Control of the User.

 

16.Effect of Termination

  1. On termination of this agreement for any reason:
    1. all licences granted under this agreement shall immediately terminate and all access rights to CyberScore of Users shall be revoked;
    2. each party shall return and make no further use of any equipment, property and other items (and all copies of them) belonging to the other party;

 

  1. XQ may destroy or otherwise dispose of any of the User Data in its possession (if any);
  2. no refund of any Licence Fee, Credits and Partner Credits shall be due; and
  3. 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.
  4. Users expressly acknowledge and unequivocally agree that XQ may maintain such copies and extracts of information from its use of CyberScore, excluding User Data, for such period of time and purposes as it may determine.

 

17.Force Majeure

XQ shall have no liability to the User 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 XQ 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 XQs or sub-contractors, provided that the User is notified of such an event and its expected duration.

 

18.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.

 

19.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.

 

20.Severance

  1. If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
  2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

 

21.Entire agreement

  1. This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
  2. Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.

 

22.Assignment

  1. Users shall not, without the prior written consent of XQ, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
  2. XQ 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.

 

23.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).

 

24.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.

 

25.Notices

  1. Any notice required to be given under this agreement shall be in writing and shall be delivered by hand 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, or sent by email to [email protected] for XQ or the email address you used to register for XQ.
  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. A notice sent by email shall be deemed to have been received at the time of transmission.

 

26.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 laws of England.

 

27.Jurisdiction

Each party irrevocably agrees that the courts of England 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).