Matillion Data Loader EULA
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Matillion Data Loader EULA

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PLEASE READ CAREFULLY BEFORE USING THE SERVICES

 

This end-user license agreement (“EULA”) is a legal agreement between the Organisation (as defined below) on whose behalf you have entered into this EULA (“you”) and MATILLION LIMITED (Company Number: 7474948) which has its registered office at Station House, Stamford New Rd, Altrincham WA14 1EP United Kingdom (“Licensor”, “us” or “we”) which sets out the terms on which you are provided access to our online subscription service (“Service”) provided via https://dataloader.matillion.com or such other website address that we may specify from time to time (“Website”) in respect of Matillion’s proprietary Matillion Data Loader software (as provided as part of the Service) (“Software”).

 

IMPORTANT NOTICE:

YOU ACKNOWLEDGE THAT THIS IS EVALUATION PRODUCT IS A BETA PRODUCT AND THAT IT IS MADE AVAILABLE ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. AS SUCH, USE OF THE EVALUATION PRODUCT IS AT YOUR OWN DISCRETION AND RISK

 

• THIS EULA TAKES EFFECT AND YOU AGREE TO THE TERMS OF THIS EULA, WHICH WILL BIND YOU WHEN YOU CLICK ON THE "ACCEPT TERMS" OR "ACCEPT TERMS & LAUNCH WITH 1-CLICK" BUTTON OR ANY SIMILAR ACCEPTANCE BUTTON.  YOU REPRESENT TO US THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS. IF YOU ARE ENTERING INTO THIS EULA FOR AN ENTITY, SUCH AS A COMPANY YOU WORK FOR, YOU REPRESENT TO US THAT YOU HAVE LEGAL AUTHORITY TO BIND THAT ENTITY. 

• THE TERMS OF THE EULA INCLUDE, IN PARTICULAR, THE LIMITATIONS ON LIABILITY IN CLAUSES 2.6.2, 2.7, 13.10 AND 15.

• YOU HEREBY GRANT US THE RIGHT AND REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO GRANT SUCH RIGHT, TO INCLUDE YOU AND THE ENTITY YOU REPRESENT AS A CUSTOMER OR CLIENT ON PUBLISHED LISTS OF OUR CUSTOMERS OR CLIENTS.

• IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, WE WILL NOT LICENSE OR PERMIT ACCESS TO THE SERVICE OR DOCUMENTS TO YOU AND YOU MUST STOP THE ORDER PROCESS NOW.

• YOU ARE RESPONSIBLE FOR ALL ACTIVITY AND USE UNDERTAKEN IN CONNECTION WITH THE SERVICE, IRRESPECTIVE OF WHETHER THE ACTIVITY OR USE IS UNDERTAKEN BY YOU, YOUR EMPLOYEES OR THIRD PARTIES (INCLUDING YOUR AGENTS OR CONTRACTORS).  WE ARE NOT RESPONSIBLE FOR ANY UNAUTHORISED ACCESS TO THE SERVICE.

• YOU CONFIRM THAT YOU ARE ACTING IN THE COURSE OF BUSINESS AND ARE NOT A CONSUMER.

You should print a copy of this EULA for future reference.

We do not sell the Service, Software or Documents to you. We (or our licensors, as appropriate) remain the owners of the Service, Software and Documents at all times.

OPERATING REQUIREMENTS AND COMPATIBILITY

 

The Service requires a compatible browser enabled device which has IP connectivity to the Website (details of compatible browsers are set out at the Website from time to time).

The Service will operate only in connection with Sources and Targets as specified on the Website from time to time.

 

1                Definitions

 

Acceptable Use Restrictions:

has the meaning given to it in clause 6;

Administrator:

an Authorised User who is granted administration rights in relation to the Service by the Owner;

Authorised User:

the Owner and those of the Organisation’s employees and other third parties (including agents and independent contractors) who are invited by the Owner (through the Service) to use the Service;

Confidential Information:

information that is proprietary or confidential and is either clearly labelled as such, identified as Confidential Information in clause 10.5 or clause 10.6 or would be regarded as confidential or proprietary by a reasonable business person.

Customer Data:

the Extracted Data and the Loaded Data;

Customer Usage Obligations:

has the meaning given to it in clause 5;

Documents:

the online or electronic documents provided by us from time to time in connection with the Service which set out a description of the Services and the user instructions for the Services;

Extracted Data:

any data extracted by the Service from a Source;

Free Subscription:

the provision of the Service without charge on a limited-use basis;

Free Subscription Period:

any period for which you use the Service on the basis of a Free Subscription;

Intellectual Property Rights:

all patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, website rights, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world

Loaded Data:

any data transferred or loaded by the Service to a Target;

Metadata:

any data that we collect or produce relating to your use of the Service and/or the Website, including the User Authentication Information and telemetry information that we collect in relation to your use of the Service but excluding all Customer Data;

Organisation:

means:

(a) if you are a sole trader, you;

(b) if you are entering into the EULA on behalf of a partnership, that partnership from time to time;

(c) if you are entering into the EULA on behalf of a company, corporation or other body corporate, that company, corporation or other body corporate;

Owner:

the person who first subscribes for the Service on behalf of the Organisation and any replacement Authorised User that you may nominate for such purpose, subject to production of such evidence of the authority to make such nomination that we shall (in our absolute discretion) require;

Permitted Purpose:

your own internal data processing operations;

personal data:

has the meaning given to it in Part 1 of Schedule 1;

Pipeline:

the activation of the Service to operate the transfer of data from a particular Source to a nominated Target on a scheduled basis;

Source:

a particular data source from which you use the Service to extract data;

Subscription:

your subscription to the Service, whether under a Free Subscription or for one or more Subscription Terms;

Subscription Fees:

the fees payable by you to us in respect of your Subscription, as set out on the Website or that we may otherwise inform you in writing prior to commencement of the relevant Subscription Term on a paid-for basis and as amended from time to time in accordance with clause 9.9 or otherwise agreed by us in writing from time to time;

Subscription Term:

a period for which you contract to use the Service on a paid-for basis, being 12 months or such other period as we may agree in writing prior to or upon commencement of the Subscription Term, including any Subscription Term that has renewed under clause 16.1, but excluding any Free Subscription Period;

Target:

a database service or software to which you use the Service to load data;

Term:

the period from the first day of your Subscription until your Subscription expires or is terminated in accordance with this EULA;

Usage Parameters:

the parameters and limits applicable to your and your Authorised Users’ use of the Service which are applicable to your Subscription, which may include the number of Pipelines you may use and the number of data rows you may process in a given time period, as set out on the Website or as otherwise agreed by us in writing from time to time;

User Authentication Information:

all information which we collect, store or produce in relation to Authorised Users for the purposes of authenticating Authorised Users’ identities, including login details of Authorised Users.

1.2            Any words following the terms “including”, “include”, “in particular” or “for example” or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.  Clause headings shall not affect the interpretation of this EULA. References to clauses are to the clauses of this EULA.

1.3            An entity or 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.  A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.  Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders

1.4            A reference to a statute or statutory provision is a reference to it as it is in force from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.5            Any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to that term in the other jurisdiction.

2                ACKNOWLEDGEMENTS

2.1            The terms of this EULA apply to your Subscription, the Service and the Documents.  This EULA shall apply to any updates or supplements to the Service and the Documents, unless they come with separate terms, in which case those terms apply.

2.2            We may change these terms at any time to address: (i) new, updated or modified functionality of the Service; and (ii) changes in laws, rules or regulatory requirements. Your continued use of the Service will be subject to any such revised terms. Without prejudice to the foregoing, we agree to provide you with not less than 30 days’ written notice prior to the commencement of a Subscription Term of any such change that we intend to make, such change to take effect at the start of the Subscription Term, unless:

2.2.1        such change is required in order to comply with law or regulatory requirements; or

2.2.2        you are using the Service on the basis of a Free Subscription.

2.3            We may modify the Service and the Website from time to time by adding, deleting or modifying features.

2.4            Any person using the Service will be assumed to be authorised by you and to have obtained permission from and be acting with your authority.  You agree to be responsible for ensuring that the Authorised Users comply with this EULA, for their use of the Service and the Documents and for any Authorised User's breach of this EULA.

2.5            Each Authorised User shall be issued an invitation to create a login with their own individual  credentials. You shall ensure that each set of login credentials relates only to one individual (and not a shared account) and you shall ensure no individual uses another individual’s login credentials.

2.6            You acknowledge that:

2.6.1        your use of the Service may impact on the size and processing capabilities of the Sources and Targets while the Service is in use;

2.6.2        your use of the Service is dependent on your IP connectivity to the Service and the availability of the Sources and Targets (and their connectivity to the Service). No guarantee is therefore given that you or any Authorised User will be able to access the Service at any given time and we shall have no liability if it is not accessible or operative at any given time;

2.6.3        it is your responsibility to ensure that your set-up of the Sources and Targets and the IP connectivity to the Service (including security set-up) is adequate for your use of the Service; and

2.6.4        your use of the Service is dependent on having a compatible browser (details of compatible browsers from time to time are set out at the Website) and that upgrading your browser may adversely impact on your ability to use the Service.

2.7            You acknowledge that the Service may enable or assist you to access and receive the services of, the website content of, to correspond with, and to purchase products and services from, third parties and that you do so solely at your own risk.  We make no representation or commitment and shall have no liability or obligation whatsoever in relation to the products and services of, content or use of, the websites of, or correspondence with, any such third-party, or any transactions completed, and any contract entered into by you, with any such third party.  Any contract entered into and any transaction completed with any third-party is between you and the relevant third party, and not us.  We recommend that you refer to the third party's terms and conditions.  We do not endorse or approve any third party products or services nor the content of any of the third-party website made available or accessed via the Service.

3                FREE SUBSCRIPTION

3.1            This clause 3 shall apply in respect of any Free Subscription. To the extent of any conflict between this clause 3 and the other provisions of this EULA this clause 3 shall prevail in relation to a Free Subscription.

3.2            Where you use the Service on the basis of a Free Subscription, we grant you a non-transferable, non-exclusive right, without the right to grant sublicences, to access and use the Service and the Documents, subject to the terms of this EULA. We reserve all other rights.  You shall ensure that:

3.2.1        only Authorised Users who the Owner permits to use the Service shall use the Service;

3.2.2        only Administrators authorised by the Owner are granted or exercise administration rights. 

3.3            You acknowledge and agree that you are responsible for all activity and use undertaken by all Authorised Users in connection with the Service and/or the Documents.

3.4            Where you are using the Service under a Free Subscription you and the Authorised Users shall not use the Service in connection with any personal data. You warrant and undertake that no part of the Customer Data shall be personal data. You shall defend, indemnify and hold harmless us against all claims, actions, proceedings, losses, damages, expenses and costs (including legal fees) arising out of or in connection with your breach of this clause 3.4.

3.5            You shall not rely on the Service or use the Service for any business critical operation during any Free Subscription Period.

3.6            You may only use one Free Subscription per Organisation.  You shall not be entitled nort attempt to use or subscribe for more than one Free Subscription.

 

3.8            Without prejudice to any other rights or remedies expressly set out in this EULA, either party may terminate a Free Subscription at any time and for any reason.

4                GRANT AND SCOPE OF LICENSE

4.1            Where the Service is to be provided for a Subscription Term, we grant you a non-transferable, non-exclusive right, without the right to grant sublicences, to access and use the Service and the Documents during the Subscription Term, subject to the terms of this EULA. We reserve all other rights.  You shall ensure that Authorised Users shall be limited to only you and those of your employees, agents and independent contractors who you permit to use the Service.  You acknowledge and agree that you are responsible for all activity and use undertaken by all Authorised Users in connection with the Service and/or the Documents.

4.2            Subject to the terms of the EULA, you and the Authorised Users may view, use and display the Service and the Documents only for the Permitted Purpose.

4.3            You undertake that your and the Authorised Users’ use of the Service shall not exceed the Usage Parameters.

5                CUSTOMER USAGE OBLIGATIONS

5.1            Except as expressly set out in this EULA, you shall:

5.1.1        except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties (and only to that extent);

(a)             not 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 Documents (as applicable) in any form or media or by any means; or

(b)             not attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;

5.1.2        not access all or any part of the Service and Documents in order to build a product or service which competes with the Service and/or the Documents;

5.1.3        not use the Service and/or Documents to provide services to or on behalf of third parties or for any purpose other than the Permitted Purpose;

5.1.4        not license, sell, rent, lease, transfer, assign, sublicense, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service and/or Documents available to any third party;

5.1.5        not attempt to obtain, or assist third parties in obtaining, access to the Service and/or Documents;

5.1.6        ensure that all Authorised Users comply with the terms of this EULA;

5.1.7        comply with all laws and regulations with respect to your and all other Authorised User’s activities under this EULA; or

5.1.8        comply with all technology control or export laws and regulations that apply to the technology used or supported by the Service;

5.1.9        comply with our reasonable instructions in connection with the operation of the Service;

5.1.10      be, to the extent permitted by law and except as otherwise expressly provided in this EULA, solely responsible for procuring, maintaining and securing your network connections and telecommunications links from your systems to the data centres on which the Service is hosted, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet; and

5.1.11      not use the Service and/or the Documents in a way that could damage, disable, overburden, impair or compromise our security or interfere with other users;

together the “Customer Usage Obligations”.

5.2            You agree to prevent any unauthorised access to, or use of, the Service and/or the Documents and, in the event of any such unauthorised access or use, promptly notify us.

6                ACCEPTABLE USE RESTRICTIONS

You shall not:

6.1            introduce, access, store, distribute or transmit during the course of your use of the Service, 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;

6.2            access, store, distribute or transmit during the course of your use of the Service, any material that:

6.2.1        is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

6.2.2        facilitates illegal activity;

6.2.3        depicts sexually explicit images;

6.2.4        promotes unlawful violence;

6.2.5        is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

6.2.6        is otherwise illegal or causes damage or injury to any person or property; or

6.3            infringe our Intellectual Property Rights or those of any third party in relation to your use of the Service or Documents; or

6.4            attempt to decipher any transmissions to or from the Service,

together the “Acceptable Use Restrictions”.

 

7.1            The Owner may, from time to time during the Term, invite additional persons to become Authorised Users and access the Service and the Documents. Such additional Authorised Users shall be invited to create login details to access the Service.

 

8.1            This clause 8 shall not apply where you are using the Service under a Free Subscription.

8.2            We shall, during the Term, provide the Service and make available the Documents to you on and subject to the terms of this EULA.

8.3            We undertake that the Service will be provided substantially in accordance with the Documents.

8.4            The undertaking at clause 8.3 shall not apply to the extent of any non-conformance which is caused by or in connection with any breach by you of this EULA, or modification or alteration of the Service by any party other than us or our duly authorised contractors or agents.

8.5            If the Service does not conform with the undertaking at clause 8.3, we will, at our expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or to provide you with an alternative means of accomplishing the desired performance. The remedies set out in this clause constitute your sole and exclusive remedy for any breach of the undertaking set out in clause 8.3.

8.6            We will use commercially reasonable endeavours to make the Service available 24 hours a day, seven days a week, except for:

8.6.1        planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time. We will use reasonable endeavours to give you at least 4 weeks’ notice in advance; and

8.6.2        unscheduled maintenance, provided that we have used reasonable endeavours to give you at least 6 hours' notice in advance.

9                PAYMENT TERMS

9.1            You shall pay the Subscription Fees and any other fees and charges payable to us under this EULA in accordance with this clause 9.

9.2            The Subscription Fees shall be payable in advance on the first day of each Subscription Term.

9.3            You shall on or prior to the first day of your first Subscription Term provide to us and/or our appointed third-party provider of payment processing services (as set out on the Website or otherwise notified to you from time to time) (Payment Services Provider) and shall ensure that at all times during the Term we and/or such provider continue to hold, such financial details that we may reasonably require to raise invoices and to take payment in accordance with this EULA, by such payment methods that we shall from time to time require. You shall take any steps necessary to facilitate us (where appropriate, via such provider) taking payment in accordance with this EULA.  

9.4            You agree to pay the Subscription Fees by such payment method that we may from time to time specify.

9.5            If we have not received payment of the Subscription Fees or any other fees or charges payable under this EULA within 14 days after the relevant due date and/or if you have failed at any time to provide or maintain financial details in accordance with clause 9.3, and without prejudice to any other of our rights and remedies:

9.5.1        we may, without liability to you, disable your and your Authorised Users’ password(s), account(s) and access to all or part of the Services and we shall be under no obligation to provide any or all of the Services while the Subscription Fees or other fees or charges concerned remain unpaid or the relevant financial information has not been provided or maintained;

9.5.2        we may at our discretion provide access to the Service on the basis of a Free Subscription and with the Usage Parameters applicable to a Free Subscription; and

9.5.3        interest shall accrue on a daily basis on any due amounts at an annual rate equal to 3% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

9.6            All Subscription Fees and other amounts payable in connection with this EULA are:

9.6.1        non-cancellable and (save where expressly stated otherwise in this EULA) non-refundable;

9.6.2        exclusive of applicable taxes and duties, including VAT and any applicable sales tax (including state sales and use tax), for which you may be additionally liable. If applicable, you agree to pay on demand the amount of any such tax or duty for which you are liable in relation to the Subscription Fees and any other amounts due to us. You will provide us with any information we reasonably request to determine whether we are obliged to collect VAT (or any other sales tax) from you, including your VAT identification number. If you are legally entitled to an exemption from any sales, use or similar transaction tax, you are responsible for providing us with legally-sufficient tax exemption certificates for each taxing jurisdiction.  We will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates.  If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount we receive, after any deduction or withholding, equals the amount we would have received if no deduction or withholding had been required.  Additionally, you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.

9.7            Without prejudice to any other right or remedy, if at any time your use of the Service exceeds the Usage Parameters, we may:

9.7.1        contact you to inform you that your usage has exceeded the Usage Parameters;

9.7.2        request that you limit your usage so that it conforms to the Usage Parameters or permit you to Subscription for a new Subscription with for an available subscription tier which would not be exceeded by your actual usage, as set out in clause 9.8; and

9.7.3        if you do not subscribe for a Subscription with increased Usage Parameters within a reasonable period or such period that we may indicate, cap your usage of the Service so that it may not exceed the Usage Parameters (or some of them).

9.8            Where you enter into a new Subscription under clause 9.7.2 it shall be for a new Subscription Term of 12 months on our then-current prevailing charges applicable to such Subscription Term and subscription tier, taking into account any fees paid in respect of the unexpired period of your former Subscription Term.

9.9            We shall be entitled to change the Subscription Fees at any time upon not less than 30 days’ notice, provided that such change shall take effect no earlier than the commencement of the next Subscription Term.

9.10          All amounts payable by you under or in connection with this EULA shall be made by you without set-off, counterclaim, deduction or withholding.

10             CONFIDENTIALITY

10.1          Each party may be given access to Confidential Information from the other party in order to perform its obligations under this EULA.  A party's Confidential Information shall not be deemed to include information that:

10.1.1      is or becomes publicly known other than through any act or omission of the receiving party;

10.1.2      was in the other party's lawful possession before the disclosure;

10.1.3      is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

10.1.4      is independently developed by the receiving party, which independent development can be shown by written evidence.

10.2          Subject to clause 10.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than as required in order to comply with its obligations or exercise its rights under this EULA.

10.3          Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this EULA.

10.4          A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

10.5          You acknowledge that details of the Service and the Documents constitute the Supplier's Confidential Information.

10.6          We acknowledge that the Customer Data is your Confidential Information.

10.7          The above provisions of this clause 10 shall survive termination of your Subscription, however arising.

11             INTELLECTUAL PROPERTY RIGHTS

11.1          You acknowledge that all Intellectual Property Rights (as defined below) in the Service and the Documents anywhere in the world belong to us or our licensors, that Intellectual Property Rights in the Service and the Documents are licensed (not sold) to you, and that you have no Intellectual Property Rights in, or to, the Service and the Documents other than the right to use each of them in accordance with the terms of this EULA.

11.2          You acknowledge that you have no right to:

11.2.1      have access to the Software other than via the Service;

11.2.2      have access to the Software in source-code form;

11.2.3      download the Software or a copy of it; or

11.2.4      install the Software on any computer or other device.

11.3          In the event of a claim that the Service or the Documents infringes the Intellectual Property Rights of a third party, we may procure the right for you to continue using the Service and/or Documents or replace or modify the Service and/or Documents so that it becomes non-infringing or, if such remedies are not reasonably practicable, terminate your Subscription by notice.  If your Subscription is so terminated, we shall return to you the relevant proportion of the Subscription Fees calculated on a pro rata basis for the remainder of the relevant Subscription Term in respect of which the Subscription Fees have been paid.

11.4          Provided that you comply with clause 12, we shall indemnify you and, at our option and as set out in12.1.4, defend you against:

11.4.1      any direct damages finally awarded to a third party by a court of competent jurisdiction (after all appeals have been exhausted) or agreed by us in settlement of any third party claim made against you arising out of actual or alleged infringement of a third party's Intellectual Property Rights arising out of your use of the Service in accordance with this EULA (IPR Claim); and

11.4.2      all reasonably and properly incurred legal and other professional costs and expenses suffered or incurred by you directly in connection with defending or assisting us with defence of such IPR Claim.

11.5          You shall defend, indemnify and hold harmless us against all claims, actions, proceedings, losses, damages, expenses and costs (including legal fees) arising out of or in connection with use of the Service and the Documents by you or any other Authorised User in breach of this EULA.

12             CONDUCT OF CLAIMS

12.1          If any third party makes a claim against a party (Indemnified Party) in relation to a matter in respect of which the other party (Indemnifying Party) is to indemnify the Indemnified Party under this EULA (Claim), or notifies the Indemnified Party of an intention to make a Claim, the Indemnified Party shall:

12.1.1      as soon as reasonably practicable, give written notice of the Claim to the Indemnifying Party, specifying the nature of the Claim in reasonable detail;

12.1.2      not make any admission of liability, agreement or compromise in relation to the Claim without the Indemnifying Party’s prior written consent;

12.1.3      give such assistance and cooperation to the Indemnifying Party and its professional advisers that the Indemnifying Party or their professional advisers may reasonably require, including by giving such access to documents, personnel, and information that the Indemnifying Party may reasonably require and promptly providing the Indemnifying Party with any correspondence or documents received by the Indemnified Party in connection with the Claim;

 

12.1.5      subject to clausesError! Reference source not found.toError! Reference source not found., take all reasonable steps to mitigate any loss the Indemnified Party may suffer or incur in connection with any event or circumstance which may give rise to a claim under clause 11.4.

13             CUSTOMER DATA

13.1          You warrant that:

13.1.1      you own all right, title and interest in and to the Customer Data or you have a license for or right to use the same;

13.1.2      you have the right to use the Service in connection with each Source and Target; and

13.1.3      our provision to you of the Service in accordance with this EULA will not:

(a)             infringe any third party’s Intellectual Property Rights in and to the Customer Data; or

(b)             cause a breach of any contract between you and any other person, which may include the provider of any Source or Target.

13.2          You shall defend, indemnify and hold harmless us against all claims, actions, proceedings, losses, damages, expenses and costs (including legal fees) arising out of or in connection with any breach of any warranty set out in clause 13.1.

13.3          You shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Extracted Data and the Loaded Data.

13.4          You shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

13.5          You hereby grant us a non-exclusive, non-transferable, revocable, worldwide licence during the Term to:

13.5.1      extract, process and aggregate the Extracted Data;

13.5.2      distribute the Loaded Data to the Targets; and

13.5.3      otherwise access, use, copy and distribute the Customer Data as may be required for the operation of the Service,

in each case for the purpose of providing the Service to you.

13.6          You shall during the Term provide such assistance, cooperation and information as is required to facilitate access by the Service to the Sources and Targets, which may include login details for the Sources and Targets, subject to the proper operation of the Service and any required application programming interfaces.

13.7          We shall own all right, title and interest in and to all of the Metadata that is not personal data.

13.8          The provisions of Schedule 1 shall apply in relation to personal data processed under or in connection with this EULA. To the extent of any conflict between this clause 13 and Schedule 1, the provisions of Schedule 1 shall prevail.

13.9          We shall not store or retain the Customer Data, save to the extent temporary caching is necessary for the proper operation of the Service in respect of such Customer Data.

13.10       You agree that all storage and back-ups of Customer Data are your responsibility. You agree to make such backups and copies of the Customer Data as are reasonably required from time to time. You acknowledge and accept that we shall not be responsible for any loss, destruction or alteration of Customer Data.

13.11       clause 13.10 is considered reasonable by the parties on the basis that in the event of any loss or damage to Customer Data which occurs in consequence of operation of the Service, you may carry out again the relevant processing via the Service and/or restore the lost or damaged Customer Data from the relevant Source or the latest back-up of such Customer Data you maintain (as appropriate).   

14             SECURITY

14.1          This clause 14 shall not apply where you are using the Service under a Free Subscription.

14.2          We will, consistent with industry standard practices, implement and maintain physical, administrative and technical safeguards and other security measures:

14.2.1      to maintain the security and confidentiality of Customer Data while it is being processed or stored by the Service; and

14.2.2      to protect Customer Data from known or reasonably anticipated threats or hazards to its security, availability and integrity, including accidental loss, unauthorized use, access, alteration or disclosure,

in each case while it is being processed or stored by the Service. We will safeguard the Customer Data with at least the degree of care we use to protect our own sensitive information of a like nature and no less than a reasonable degree of care.

14.3          We will upon request provide you with a copy of, or online viewing access to, a summary of our security practices applicable to the Customer Data (“Security Policy”) and any material updates to our Security Policy. We will comply in our performance of our obligations under this EULA with the Security Policy. Without limiting the generality of the foregoing, we will conduct regular penetration testing or other appropriate security testing and security audits and, upon your reasonable request, provide you with a copy of or online viewing access to reports summarising such testing and audits. Such information may be provided as part of the Security Policy.

14.4          We will inform you promptly (but in any event within 72 hours) upon discovery of any actual or reasonably suspected compromise, unauthorised access to, alteration, loss, use or disclosure of, any Customer Data or any other breach of the confidentiality, security or integrity of Customer Data, in each case while such Customer Data is being processed or stored by the Service (each a “Security Incident”). We will investigate and conduct a root cause analysis of the Security Incident and take all reasonable steps to prevent further compromise, access, alteration, loss, use or disclosure of such Customer Data; provided however that no notice is required for, and Security Incidents do not include, “unsuccessful” security incidents, such as pings on a firewall, that do not represent a risk to the Customer Data. We will provide you written details and regular updates regarding our internal investigation of each Security Incident, and we will cooperate and work together with you to formulate and execute a plan to rectify all confirmed Security Incidents.

14.5          We will establish, implement, invoke when needed, and comply with a business continuity plan (“Business Continuity Plan”) that incorporates our contingency plans, recovery plans (including recovery point objective and recovery time objective) and risk controls designed to enable our continued performance under this EULA consistent with any applicable recovery time objective specified therein

15             LIMITATION OF LIABILITY

15.1          You acknowledge that the Service and Documents have not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Service and Documents meet your requirements.

15.2          This clause 15 sets out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you:

15.2.1      arising under or in connection with this EULA;

15.2.2      in respect of any use of the Service and Documents or any part of them; and

15.2.3      in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this EULA.

15.3          Except as expressly and specifically provided in this EULA:

15.3.1      you acknowledge that the Service is a tool and that you are responsible for the use of such tool and accordingly you assume sole responsibility for results obtained from the use of the Service and the Documents, and for conclusions drawn from such use.  Accordingly, you agree to verify and test the results to ensure that they meet your requirements and that they are accurate based on the Customer Data and the use of the Service;

15.3.2      you acknowledge and agree that transmissions are never completely private or secure. You understand that any instructions, message or information you send when using the Service may be read or intercepted by others;

15.3.3      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 EULA;

15.3.4      the Service and the Documents are provided on an "as is" and "as available" basis and you acknowledge that the Service is not error, fault or bug free and that we shall have no liability to you for any such occurrences.

15.4          Nothing in this EULA excludes our liability:

15.4.1      for death or personal injury caused by our negligence;

15.4.2      for fraud or fraudulent misrepresentation, or

15.4.3      for any other liability which may not be excluded by law.

15.5          Subject always to clause 15.4:

15.5.1      we shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise, for any: 

(a)             loss of profits;

(b)             loss of business;

(c)             depletion of goodwill and/or similar losses;

(d)             loss or corruption of data or information;

(e)             pure economic loss; or

(f)              special, indirect or consequential loss, costs, damages, charges or expenses however arising;

15.5.2      our total aggregate liability in contract (including in respect of any indemnity) tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, shall in respect of a Free Subscription be limited to US$1,000.

15.5.3      our total aggregate liability in contract (including in respect of any indemnity), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, shall in respect of a Subscription Term be limited to the total Subscription Fees paid by you in respect of the relevant Subscription Term; and

15.5.4      we shall have no liability to you unless you serve notice in writing to us of your claim within 3 months of the date you become aware or ought to have become aware of the claim or the circumstances giving rise to the claim.

15.6          Subject always to clause 15.4 but without prejudice to the other terms of this clause 15, we shall have no liability for any damage or loss which is caused by use of the Service and/or the Documents contrary to our instructions or in breach of this EULA, or modification or alteration of the same by any party other than us, our duly authorised contractors or agents

15.7          We do not warrant that your use of the Service will be uninterrupted or error-free; or that the Service, Documents and/or the information obtained through them will meet your requirements.

15.8          We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the operation or non-operation of any third-party service or software (including the Sources and Targets), or from the transfer of data over communications networks and facilities (including the internet) and you acknowledge that the Service and Documents may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

15.9          This EULA shall not prevent us 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 EULA.

15.10       We warrant that we have and will maintain all necessary licenses, consents, and permissions necessary for the performance of our obligations under this EULA.

16             TERM AND TERMINATION

16.1          Your Subscription shall commence on the first day of the Term and, unless terminated earlier in accordance with this EULA:

16.1.1      in the case of a Free Subscription, shall continue until it is terminated in accordance with this EULA; and

16.1.2      in the case of a Subscription on a paid-for basis, shall continue for the Subscription Term and shall automatically renew for another Subscription Term of the same duration as the preceding Subscription Term at the end of each Subscription Term (including any Subscription Term that has been so renewed). Either party may give written notice to the other party, not later than 14 days before the end of a Subscription Term, to terminate your Subscription at the end of such Subscription Term.

16.2          We may terminate your Subscription suspend or restrict access to, or restrict the performance of, the Service immediately by notice if:

16.2.1      you fail to make payment when due;

16.2.2      you commit a material or persistent breach of this EULA; or

16.2.3      you breach any of the Usage Parameters, Customer Usage Obligations or the Acceptable Use Restrictions.

16.3          On termination or expiry of your Subscription for any reason:

16.3.1      all rights granted to you under this EULA shall cease;

16.3.2      you must immediately cease all activities authorised by this EULA, including your use of the Service and the Documents;

16.3.3      you must immediately destroy all copies of the Documents then in your possession, custody or control; and

16.3.4      we may disable your access to the Service and the Documents.

17             COMMUNICATION BETWEEN US

17.1          If you wish to contact us in writing, or if any condition in this EULA requires you to give us notice in writing, you must send this to us by email at legal@matillion.com.  All communications and notices must be in the English language.

17.2          If we have to contact you or give you notice in writing, we must send this to you by email to the email address of the Owner that has been provided to us, as updated by you from time to time by notice to us.

17.3          Any notice or communication shall be deemed to have been received at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 17.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

17.4          This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

18             EVENTS OUTSIDE OUR CONTROL

18.1          We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this EULA that are caused by any act or event beyond our reasonable control, including failure of public or private networks and connectivity (“Event Outside Our Control”).

18.2          If an Event Outside Our Control takes place that affects the performance of our obligations under this EULA:

18.2.1      our obligations will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and

18.2.2      we will use our reasonable endeavours to find a solution by which our obligations may be performed despite the Event Outside Our Control.

19             OTHER IMPORTANT TERMS

19.1          We may transfer and assign our rights and obligations under this EULA to another organisation, but this will not affect your rights or our obligations under this EULA.

19.2          You may only transfer or assign your rights or obligations under this EULA to another person if we agree in writing.

19.3          If we fail to insist that you perform any of your obligations under this EULA, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, that will not mean that we will automatically waive any later default by you.

19.4          Each of the provisions of this EULA operates separately. If any court or competent authority decides that any of them are invalid, illegal or unenforceable, the remaining provisions will remain in full force and effect.

19.5          If any invalid, illegal or unenforceable provision of this EULA would be valid, enforceable and legal if some part of it were deleted, the provisions shall apply with whatever modification is necessary to give effect as far as possible to the commercial intention of the parties.

19.6          Please note that disputes or claims arising in connection with this EULA, its subject matter and its formation (including non-contractual disputes or claims) are governed by English law.

19.7          You irrevocably agree for our exclusive benefit that the courts of England shall have exclusive jurisdiction (save as set out in clause 19.8) to hear and determine any suit, action or proceeding and to settle any dispute which may arise out of or in connection with this EULA, its subject matter or formation (including non-contractual disputes or claims) and for such purposes you irrevocably submit to the jurisdiction of such courts.

19.8          Nothing in clause 19.7 shall limit our right to take proceedings against you in any court of competent jurisdiction, nor shall the taking of proceedings in one or more jurisdictions preclude the talking of proceedings in any such other jurisdiction whether concurrently or not (unless precluded by applicable law).

19.9          This EULA 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.

19.10       Each of the parties acknowledges and agrees that in entering into this EULA 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 EULA or not) relating to the subject matter of this EULA, other than as expressly set out in this EULA.

19.11       Nothing in this EULA 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).

19.12       This EULA does not confer any rights on any person or party (other than the parties to this EULA and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

 

 

 

                                                                         Schedule 1       Data Processing Terms

                                                                                              Part 1      Definitions

1                The definitions and rules of interpretation set out in the main body of the EULA apply in this Schedule. In addition the following definitions apply in this Schedule:

appropriate technical and organisational measures:

has the meaning given to it in the Data Protection Legislation;

controller:

has the meaning given to it in the Data Protection Legislation;

Customer Personal Data:

personal data which we process under this EULA in respect of which you are the controller;

Data Protection Legislation:

the UK Data Protection Legislation and the EEA Data Protection Legislation;

EEA Data Protection Legislation:

the General Data Protection Regulation ((EU) 2016/679), as amended, and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data;

data subject:

has the meaning given to it in the Data Protection Legislation;

personal data:

has the meaning given to it in the Data Protection Legislation;

personal data breach:

has the meaning given to it in the Data Protection Legislation;

processing:

has the meaning given to it in the Data Protection Legislation;

processor:

has the meaning given to it in the Data Protection Legislation;

UK Data Protection Legislation:

all applicable data protection and privacy legislation in force from time to time in the UK, including the Data Protection Act 2018 and any other UK legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data.


 

                                                                                      Part 2      Processing Terms

2                If and to the extent that it is subject to the Data Protection Legislation in respect of its activities under or in connection with this EULA, each party shall comply with all applicable requirements of the Data Protection Legislation. This Schedule is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.

3                The parties acknowledge that:

3.1            if we process any Customer Personal Data when performing our obligations under this EULA, you are the controller and we are the processor for the purposes of the Data Protection Legislation;

3.2            Part 4 of this Schedule 1 sets out the scope, nature and purpose of processing carried out by us, the duration of the processing and the types of Customer Personal Data and categories of data subject; and

3.3            the Customer Personal Data may, subject to paragraph5.2, be transferred or stored outside the UK, the EEA or the country where you and the Authorised Users are located in order to provide the Service and carry out our other obligations under this EULA.

4                Without prejudice to the generality of paragraph2, you shall ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to us for the duration and purposes of this EULA so that we may lawfully use, process and transfer the Customer Personal Data in accordance with this EULA on your behalf.

5                Without prejudice to the generality of paragraph2, we shall, in relation to any Customer Personal Data processed in connection with the performance by us of our obligations under this EULA:

5.1            process that Customer Personal Data only on your documented written instructions unless we are required by the laws of any member of the European Union or by the laws of the European Union applicable to us and/or Domestic UK Law (where “Domestic UK Law” means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (“Applicable Laws”). Where we are relying on Applicable Laws as the basis for processing personal data, we shall promptly notify you of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit us from so notifying you;

5.2            not transfer any Customer Personal Data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:

5.2.1        you or we have provided appropriate safeguards in relation to the transfer;

5.2.2        the data subject has enforceable rights and effective legal remedies;

5.2.3        we comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any Customer Personal Data that is transferred; and

5.2.4        we comply with reasonable instructions notified to us in advance by you with respect to the processing of the Customer Personal Data;

5.3            assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

5.4            notify you without undue delay on becoming aware of a personal data breach in relation to the Customer Personal Data;

5.5            at your written direction, delete or return Customer Personal Data and copies thereof to you on termination of your Subscription unless required by Applicable Law to store the personal data (and for these purposes the term "delete" shall mean to put such data beyond use); and

5.6            maintain complete and accurate records and information to demonstrate our compliance with this paragraph 5 and promptly inform you if, in our opinion, an instruction infringes the Data Protection Legislation.

6                Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised 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 organisational measures adopted by it).

7                You consent to us appointing third-party processors, including, as at the first day of the Term, the third-party processors referred to in Part 5 of Schedule 1, as third-party processors of Customer Personal Data under this EULA. We shall inform you of any intended changes concerning the addition or replacement of third-party processors, giving you the opportunity to object to such changes. As between you and us, we shall remain fully liable for all acts or omissions of any third-party processor appointed by us pursuant to this paragraph7.

8                We confirm that we have entered or (as the case may be) will enter with any third-party processor(s) into a written agreement substantially on the relevant third-party processor’s standard terms of business or incorporating terms which are substantially similar to those set out in this Part 2 of Schedule 1 and, in either case, which we confirm reflect and will continue to reflect the requirements of the applicable Data Protection Legislation.

9                We may, at any time on not less than 30 days' notice, revise thisPart 2 by replacing it (in whole or in part) with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme.

 

                                                                                      Part 3      Data sharing terms

1                To the extent Metadata contains personal data such personal data shall be Shared Personal Data for the purposes of this EULA. Such personal data shall not constitute Customer Personal Data.

2                This Part 3 sets out the framework for the sharing of personal data between the parties as controllers. Each party acknowledges that you may disclose to us Shared Personal Data collected by you for the purposes of us providing the Service and monitoring your access to and use of the Service in order to ensure compliance and/or improve the provision of the Servicce (Agreed Purposes).

3                Each party shall comply with all the obligations imposed on it as a controller under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this EULA with immediate effect.

4                You shall:

4.1            ensure that you have all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data to us, our employees and any third parties engaged by us to perform obligations in connection with this EULA (Permitted Recipients) for the Agreed Purposes;

4.2            give full information to any data subject whose personal data may be processed under this Part 3o f the nature such processing. This includes giving notice that, on the termination of this EULA, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees.

5                We shall:

5.1            process the Shared Personal Data only for the Agreed Purposes;

5.2            not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients; and

5.3            ensure that we have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

6                Each party shall, at the expense of the other party, provide reasonable assistance to the other party in complying with all applicable requirements of the Data Protection Legislation.

7                You shall indemnify us against all liabilities, costs, expenses, damages and losses (including all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the indemnified party arising out of or in connection with your breach of paragraph 3 or 4 of this Part 3.

 

                                                                                   Part 4      Details of processing

Subject matter and duration of the processing

 

The Customer Personal Data which is inputted into the Service by you.

We shall only process the Customer Personal Data for as long as is required to comply with this EULA or where we are required to store the Customer Personal Data to comply with Applicable Laws or for regulatory purposes.

Nature and purpose of the processing

Processing of the Customer Personal Data in order to provide the Service and comply with our obligations under this EULA.

Type of personal data

 

The Customer Personal Data shall include any personal data you input into the Service.

Categories of data subjects

Any individuals whose personal data may be inputted into the Service by you.

 

 

Part 5 Third-party processors

·        Amazon Web Services, Inc.

·        Auth0, Inc.