Terms of Business

The General Terms and any privacy related documents executed by the parties (collectively, this “Agreement”) form a contract between you and Days Limited. This Agreement governs your subscription to, and use of, the Company’s website and other related applications or services. This Agreement is the entire agreement between you and the Company in relation to its subject matter. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty that is not set out in the Agreement.

Reference to the singular includes the plural and vice versa, and reference to the masculine includes the feminine and vice versa.

3.1 DAYSIUM SERVICES

During the Subscription Term, we will provide you with the worldwide (subject to applicable export and import laws and regulations), non-exclusive, limited, non-transferable (except pursuant to a permitted assignee under these General Terms), royalty-free right for you and your Users to access and use the Platform (the “Services”). You may order additional services at any time by contacting our team. We will invoice you for any additional services you order after the start of the Subscription Term at the time those additional Services are ordered.

3.1.1 TRIAL SUBSCRIPTIONS

Daysium may, at its sole discretion, offer the Customer complimentary access to the Services or a trial or evaluation subscription to the Services (a “Trial Subscription”). If Customer receives free a Trial Subscription  then Customer may use the Services in accordance with the terms and conditions of this Clause 3.1.1 (and any other supplemental trial terms agreed by Customer in writing) for a period of fourteen (14) calendar days or such other period granted by Daysium at its sole discretion (the “Trial Period”). Trial Subscriptions are permitted solely for Customer’s evaluation to determine whether to enter a Subscription Term to the Services or an upgrade to a service plan. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term and may be subject to usage limits. If Customer does not enter into a paid Subscription Term prior to the expiration of the Trial Period, this Agreement and Customer’s right to access and use the Services will terminate at the end of the Trial Period, except as otherwise set forth herein. If stated in the Order Form or Additional Product Terms for specific Services or otherwise communicated in advance by Daysium to Customer, a paid Subscription Term will commence automatically once the Trial Period expires, and Customer will be charged for any continued use of the Services. Daysium has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DAYSIUM WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, SERVICE LEVEL AGREEMENT (“SLA”), OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS. Upon the expiration or termination of the Trial Period, Daysium will retain any Customer Data submitted or transferred during the Trial Subscription for a period of 30 calendar days, after which the Customer Data will be irretrievably deleted, unless the Customer enters into a paid Subscription Term.

3.2 CHANGES TO SERVICES

We continually update and improve our Services. Daysium may alter the Services at any time without prior notice and without your consent. We will provide you with reasonable prior notice if we make a change to the Services resulting in an overall material decrease in functionality of the Services. If we do make a change that results in a material decrease in functionality, you may terminate this Agreement under clause 10.3.

3.2.1 BETA OFFERINGS

Customer may choose to use Beta Offerings in its sole discretion. Use of Beta Offerings may be subject to additional terms. Daysium, in its discretion, may offer a Beta Offering with or without charge. Daysium reserves the right to start charging and/or modify the pricing for a Beta Offering upon prior written notice to Customer. Beta Offerings may be changed at any time without notice and may not be maintained and/or become generally available. Beta Offerings are to be used for Customer’s internal testing and evaluation purposes only and are not subject to the same security measures specified in the Security Policy. Daysium will have no liability arising out of or in connection with Beta Offerings and disclaims any warranty, indemnity, support, SLA, or other obligations with respect to its Beta Offerings. CUSTOMER USES BETA OFFERINGS “AS IS” AND AT ITS OWN RISK.

3.3 SUSPENSION OF SERVICES

We may limit or suspend the Services from time to time at our discretion. If Daysium limits or suspends the Services, we will give you reasonable advance notice so that you can plan around it. However, there may be some situations, such as security emergencies, where it may not be practicable for us to give you advance notice. We will use commercially reasonable efforts to narrow the scope and duration of the suspension or limitation as is needed to resolve the issue that prompted such action.

In the event you or your Users are found to be in material breach of this Agreement (including but not limited to Customer’s failure to pay Daysium the fees for the Services), we reserve the right to suspend your access to or use of the Services immediately. Where we exercise this right, we will inform you within 3 working days of your suspension of the reasons for this decision.

4.1 FEES FOR SERVICES

The Services are billed on a subscription basis (“Subscription”), and you will be billed annually on the anniversary date in each calendar year following the Effective Date (“Billing Cycle”).

You agree to pay Daysium fees for each Service you purchase or use, in accordance with the pricing and payment terms presented to you for those Services. Except as indicated in this Agreement or required by law, fees paid by you are not refundable.

Daysium may pay the individual or entity that referred or introduced you to Daysium a fee for doing so, at Daysium’s absolute discretion.

You are entitled to a period within which to cancel your Subscription which is thirty calendar days from the Effective Date (the “Cooling Off Period”). If you choose to terminate your Subscription at any time during the Cooling Off Period, you will not be entitled to a refund of fees already incurred to the date of termination, and you will not be required to pay any further fees under the Subscription. Where you have selected and paid for an annual Subscription you will receive a refund totalling your annual Subscription fee minus the equivalent of a thirty day Subscription fee.

For the avoidance of doubt, should you terminate your Subscription at any time outside of the Cooling Off Period, whilst you remain within the Subscription Term, you will not be entitled to any refund.

4.2 AUTOMATIC RENEWAL

Your Subscription for any Services will automatically renew at the end of each Subscription Term unless you cancel the automatic renewal of that Service by providing us with 28 days’ written notice prior to the expiry of the current Subscription Term for that Service.

Any automatic renewal does not guarantee that the price for Services paid during the previous Subscription Term will remain the same for the next Subscription Term.

4.3 INTEREST

Overdue payments may incur interest at the rate of 1.5% per month on the amount overdue, from the date that the relevant payment was due until the date that the payment has been received by Us. You will be responsible for all reasonable expenses (including lawyers’ fees) incurred by Daysium in collecting such overdue amounts, except where:

(a) the overdue amounts are due to Daysium’s billing inaccuracies; or

(b) you have sought to resolve a dispute using the dispute resolution process in clause 15 and that process is still active.

4.4 TAXES

All fees for Services exclude sales tax, GST, VAT, or other similar taxes. You are responsible for all taxes or duties payable under applicable law relating to the Services provided under this Agreement, including any penalties or interest and you hereby indemnify Daysium for an unpaid tax incurred on your behalf in the use of the Services. If Daysium is required to collect or pay any taxes on your behalf, we will invoice you for those taxes unless you provide us with valid evidence that no tax should be invoiced.

5.1 PRIVACY
Days Limited is the data controller, as defined in Article 4(7) of the EU General Data Protection Regulation 2016/679 (GDPR),
responsible for the processing of your personal data in connection with your use of our platform and services.
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In the course of using the Services, you or your Users may transfer to us personal data.You agree and consent to the use, transfer, processing, and storage of this data in accordance with this Agreement and any applicable Data Protection legislation.
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You specifically consent to and acknowledge that any collecting, processing and disclosing of personal information in relation to our provision of the Services may involve (i) the collecting and processing of personal data and/or special category data belonging to you or your Users and (ii) the transfer of personal data, in accordance with applicable laws, to, from and within the EEA (such term including Jersey) and (iv) the transfer of personal data, in accordance with applicable laws, to countries outside of the EEA, including the United States, where data protection laws may be different from those in your jurisdiction.

​Full details of our Privacy Notice can be found here.
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5.2 SECURITY
Daysium will store and process Customer Data in a manner consistent with industry security standards. Daysium has implemented technical, organisational, and administrative systems, policies, and procedures to help ensure the security, integrity, and confidentiality of Customer Data and to mitigate the risk of unauthorised access to or use of Customer Data.
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5.3 DISASTER RECOVERY
Daysium will retain backup copies of Customer Data made in the ordinary course of business by Daysium, for the purpose of enabling appropriate disaster recovery practices. Despite any other term in this Agreement, Daysium will retain these backups for a period of up to 90 days from the time that each backup copy is generated. Thereafter, Customer agrees and acknowledges that Customer Data will be irretrievably deleted from backups.

6.1 CONFIDENTIAL INFORMATION DEFINITION
In this Agreement, Confidential Information means any information disclosed by a party (the Discloser) to the other party (the Recipient) in connection with the use of the Services that is marked confidential or would reasonably be considered as confidential under the circumstances. Customer Data is the Customer’s Confidential Information. Confidential Information does not include any information that:

1. is or becomes public through no fault of the Recipient;
2. the Recipient already lawfully knew;
3. was rightfully given to the Recipient by a third party free of any confidentiality duties or obligations; or
4. was independently developed by the Recipient without reference to the Discloser’s Confidential Information as demonstrated by documentary evidence.

6.2 CONFIDENTIALITY OBLIGATIONS
The Recipient must:

1. protect the Discloser’s Confidential Information using commercially reasonable efforts and no less than the same efforts it uses to protect its own Confidential Information;
2. not disclose the Discloser’s Confidential Information, except to affiliates, employees, directors, contractors, agents, and professional advisors of the Recipient who need to know it and who have agreed in writing to keep it confidential;
3. only use the Discloser’s Confidential Information to exercise its rights and fulfil its obligations under this Agreement; and
4. ensure that its affiliates, employees, directors, contractors, agents, and professional advisors only use the Discloser’s Confidential Information to exercise its rights and fulfil its obligations under this Agreement.

6.3 COMPELLED DISCLOSURE
The Recipient may disclose the Discloser’s Confidential Information to the extent required by law or legal process, but only after it, if permitted by law:

1. uses commercially reasonable efforts to notify the Discloser in writing;
2. gives the Discloser the opportunity to challenge the requirement to disclose; and
3. cooperates with the Discloser if the Discloser seeks an appropriate protective order.
If the Recipient is unable to notify the Discloser before Compelled Disclosure is required, it will notify the Discloser immediately after the Compelled Disclosure has been made (to the extent this is not prohibited by law, regulation or court order).

6.4 NON-DISCLOSURE AGREEMENTS
The provisions of this clause 4 will supersede any non-disclosure agreement between the Parties and such agreement will have no further force or effect.

​7.1 INTELLECTUAL PROPERTY RIGHTS DEFINITION

Unless otherwise indicated, the Platform is our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Platform (collectively, the “Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or licensed to us and are protected by copyright and trademark laws and various other intellectual property rights, international copyright laws, and international conventions. The Content and the Marks are provided on the Site “AS IS” for your information and personal use only. Except as expressly provided in these Terms and Conditions, no part of the Site and no Content may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission. Intellectual Property Rights also include any application or right to apply for registrations of any of these rights, any rights protected or recognised under any laws throughout the world, related to these rights, and anything copied or derived from such property or rights.
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7.2 CUSTOMER INTELLECTUAL PROPERTY RIGHTS
You retain all ownership and Intellectual Property Rights to your Customer Data. Daysium does not claim ownership over any Customer Data. This Agreement does not grant us any licences or rights to Customer Data except for the licences granted in clauses 7.3 and 7.4 below, or as otherwise required for us to provide the Services to you or your Users.
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7.3 LICENCE FOR SERVICES
For the term of this Agreement, you grant Daysium a worldwide, royalty free licence to use, reproduce, distribute, modify, adapt, create derivative works, or archive Customer Data for the purposes of providing the Services to you as contemplated by this Agreement.
Subject to the receipt of all applicable fees, we grant you a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable license to use any Reports which you can (and are authorised to) export through the functionality of the Services for your internal purposes (in each case subject to any Confidentiality Notices).
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7.4 LICENCE FOR SERVICE IMPROVEMENT
You grant Daysium a worldwide, royalty free licence to use, reproduce, distribute, modify, adapt, create derivative works, archive, or otherwise use Customer Data for the purposes of Service Improvement and creating de-identified aggregated data (“Data Sets”). Data Sets may be made publicly available and may be used after termination of this Agreement provided that such Data Sets cannot directly or indirectly identify the Customer or its Users.
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7.5 CUSTOMER DATA REVIEW
You acknowledge that, in order to ensure compliance with legal obligations, Daysium may be required to review certain content submitted to the Services to determine whether it is illegal or whether it violates this Agreement (such as when unlawful conduct or content is reported to us). We may also prevent access to or refuse to display content that we reasonably believe violates the law or this Agreement.
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7.6 CUSTOMER FEEDBACK
If you provide us with any feedback associated with the Services, Daysium may use that feedback without any obligation to you.
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7.7 CUSTOMER LISTS
Daysium may identify you (by name and logo) as a Daysium customer in promotional materials or during promotional events, unless you expressly inform us in writing that you do not wish for us to do so.
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7.8 DAYSIUM INTELLECTUAL PROPERTY RIGHTS
Nothing in this Agreement or from your use of the Services grants you:

7.8.1 ownership in the Services or the content (including Reports) you access through the Services (other than Customer Data); and

7.8.2 any right to use any Daysium trademarks or other Intellectual Property Rights contained in our brand identity.

Daysium will continue to own all right, title, and interest in and to the Services and the systems and networks used to provide such Services, including all system-generated data (e.g., dashboard data or Reports), modifications, improvements, upgrades, derivative works, and all intellectual property rights in and to any of the foregoing. Except for the express rights granted herein, we do not grant you any other licenses, express or implied, to any of our intellectual property including software, services, or products.

You acknowledge that the Daysium Platform is the property of Daysium and we expressly reserve copyright/intellectual property rights in any solution or advice provided to you/your Users. Solutions and advice that we provide is only to be used by you/your Users for the specific purpose for which it was provided and you/your Users shall not, without our prior written consent, use such a solution or advice in any way or for any other purpose, nor shall you/your Users duplicate, amend, vary or adapt the solution or advice in any way or allow any third party to use the solution or advice, except as shall be agreed in writing between the parties.
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7.9 PLATFORM SUB-PROCESSORS

The Platform may contain (or you may be sent via the Platform) links to other websites (“Third-Party Service Providers”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties (“Third-Party Content”). Such Third-Party Service Providers and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Service Providers accessed through the Platform or any Third-Party Content posted on, available through, or installed from the Platform, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Service Providers or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Service Providers or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Platform and access the Third-Party Service Providers or to use or install any Third-Party Content, you do so at your own risk, and you should be aware that to do so would be outside of the remit of this Agreement. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Platform or relating to any applications you use or install from the Platform. Any purchases you make through Third-Party Service Providers will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. You agree and acknowledge that we do not endorse the products or services offered by Third-Party Service Providers and you shall hold us harmless from any harm caused by your purchase of such products or services. Additionally, you shall hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third-Party Service Providers.

You agree that Daysium and the Third-Party Service Providers that are utilised by Daysium to assist in providing the Services to you have the right to access your account and to use, modify, reproduce, distribute, display and disclose Customer Data to the extent necessary to provide or improve or deliver the Services, including, without limitation, in response to your or your Users’ support requests. Daysium will be responsible for all acts and omissions of its sub-processors.

Any Third-Party Service Providers utilised by Daysium will only be given access to your account and Customer Data as is reasonably necessary to provide the Services and will be subject to: (i) confidentiality obligations which are substantially consistent with the standards described in this Agreement; and (ii) their agreement to comply with the data transfer restrictions applicable to personal information as set forth in this Agreement.

8.1 ACCOUNT SECURITY AND ACCESS
You are responsible for safeguarding any passwords or other credentials used to access your account. Administrator or manager accounts may not be shared and may only be used by one individual per account. You are responsible for any activity occurring in your account (other than activity that Daysium is directly responsible for and is not performed in accordance with your instructions), whether or not you authorised that activity. If you become aware of any unauthorised access to, or use of, your account, you should immediately notify our team.

8.2 CUSTOMER SYSTEMS
You are responsible for maintaining and updating your operating systems, Internet browsers, anti-virus software, or other software that you or your Users use to access and use the Services.

8.3 RELIANCE ON DATA PROVIDED BY YOU
You are responsible for the accuracy of the data that you provide to Daysium in use of the Services.You acknowledge and accept that Daysium has no responsibility to you or your Users for the performance of the Services where you provide data which is incorrect, incomplete or mis-leading.

9.1 LEGAL COMPLIANCE
You must use the Services in compliance with, and only as permitted by, your internal company rules and any applicable law. If your use of the Services requires you to comply with industry-specific regulations applicable to such use, you will be solely responsible for such compliance. You must not use the Services in a way that would subject Daysium to any industry-specific regulations (for example, the Children’s Online Privacy Protection Act, the Payment Card Industry Data Security Standard or the Health Insurance Portability and Accountability Act). You acknowledge and agree that we are not responsible for any liabilities arising from your violation of this restriction.

9.2 UNACCEPTABLE USES
You expressly agree not to undertake any of the following Prohibited Activities and hold harmless Daysium from any costs, liability, damages arising as a result of You undertaking any of the following Prohibited Activities:

1. Misuse of the Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions we provide;
2. Circumventing or attempting to circumvent any limitations that Daysium imposes on your account by setting up an alias account;
3. Probing, scanning, or testing the vulnerability of any Daysium system or network, unless with prior written authorisation of Daysium;
4. Deciphering, decompiling, disassembling, translating, creating derivative works, reverse engineering or otherwise attempting to reconstruct, identify or discover any source code, algorithms, underlying ideas or underlying user interface techniques in the Services or any of the software used to provide the Services, or attempting to do so;
5. Directly or indirectly identifying a User contrary to the terms of any Confidentiality Notice or other privacy setting, or attempting to do so;
6. Transmiting any viruses, malware, or other types of malicious software, or links to such software, through the Services;
7. Engaging in abusive or excessive use of the Services, which is usage significantly in excess of average usage patterns that adversely affect the speed, responsiveness, stability, availability, or functionality of the Services for other customers and their users. Daysium will use reasonable efforts to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to a level acceptable to Daysium;
8. Using the Services to infringe the Intellectual Property Rights of others, or to commit any unlawful activity;
9. Attempting to circumvent any license, timing or use restrictions that are built into the Services; or
10. Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords.
11. Make improper use of our support services or submit false reports of abuse or misconduct.
12. Use the Platform in a manner inconsistent with any applicable laws or regulations.
13. Engage in unauthorized framing of or linking to the Platform.
14. Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Platform or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Platform.
15. Engage in any automated use of the Platform, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
16. Delete the copyright or other proprietary rights notice from any Content.
17. Attempt to impersonate another user or person or use the username of another user.
18. Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”).
19. Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Platform to you.
20. Attempt to bypass any measures of the Platform designed to prevent or restrict access to the Platform, or any portion of the Platform.
21. Copy or adapt the Platform’s software, including but not limited to Flash, PHP, HTML, JavaScript, or other code.
22. Except as permitted by applicable law, decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Platform.
23. Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Platform, or using or launching any unauthorized script or other software.
24. Use the Platform as part of any effort to compete with us.
25. Use the Platform to inform the development of or develop a product or service that would be reasonably regarded to compete with or be reasonably similar to the Platform.

9.3 USERS
You must:

1. ensure that your Users comply with the terms of this Agreement;
2. obtain any consents required from each User to allow you and your Users to engage in the activities contemplated by this Agreement, as required by applicable law;
3. obtain any consents required from each User to allow Daysium to provide the Services, as required by applicable law; and
4. not provide any person under the age of 16 with access to the Services, unless otherwise permitted by applicable law.

9.4 SUSPENSION OF USERS
If a User breaches any of the terms of this Agreement or otherwise uses the Services in a manner that Daysium reasonably believes will cause Daysium liability or disrupt others’ use of the Services, then Daysium may request that you suspend or close the applicable User account until the breach has been cured or the use in such manner has stopped. If you fail to comply with such request, then Daysium may suspend or close the applicable User account.

10.1 TERMINATION FOR CAUSE
Each party may terminate this Agreement if the other party:

1. is in material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice; or
2. ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
In addition, Daysium may immediately terminate this Agreement if: (i) any payment owed by you to Daysium is more than 30 days overdue; or (ii) Customer breaches clause 8.2.

10.2 TERMINATION FOR CONVENIENCE
Each party may terminate this Agreement by giving the adequate notice contained in Clause 4.3

10.3 TERMINATION FOR MATERIAL DECREASE IN FUNCTIONALITY
If we make a change to the Services resulting in an overall material decrease in functionality of the Services, you may terminate this Agreement immediately by providing notice to Daysium. Upon receiving notice of termination from you, Daysium will provide you with a pro rata refund of any fees prepaid by you applicable to the period following the termination of this Agreement.

10.4 CONSEQUENCES OF TERMINATION
If this Agreement is terminated:

1. by you due to material breach by Daysium, we will provide you with a pro rata refund for any fees prepaid by you applicable to the period following the termination of this Agreement; or
2. by Daysium due to breach by you, we will bill you, and you will pay, for any accrued but unbilled fees for the Subscription Term, and you will remain liable to pay any invoices outstanding on the termination date.
In no event will expiration or termination of this Agreement relieve you of any fees payable for the period prior to the date of termination.

10.5 SURVIVAL
The following clauses will survive the termination of this Agreement: 3, 4.4, 4.5, 5, 6.3, 6.4, 9, 11, 12, 14 and 15.

​Each party represents and warrants that it:

1. has full power and authority to enter into this Agreement; and
2. will comply with all laws and regulations applicable to its provision or use of the Services.

12.1 BY CUSTOMER
To the maximum extent permitted by law, you will indemnify, defend, and hold harmless Daysium and its affiliates from and against all actions, proceedings, claims, demands, liabilities, damages, and costs (including settlement costs and reasonable lawyers’ fees) arising out of a third-party claim regarding or in connection with:

1. Customer Data (including claims of Intellectual Property Rights infringement); and
2. your or your User’s breach of clause 7.

12.2 BY DAYSIUM
Daysium will indemnify, defend, and hold you harmless from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third-party claim that the technology used to provide the Services to you infringes any Intellectual Property Rights of such third party; provided however, that Daysium will not have any obligations or liability under this clause arising from:

1. use of any Services in a modified form or in combination with materials not furnished or authorised by Daysium;
2. any content or data provided by you, your Users, or any third parties; or
3. designs or specifications provided to Daysium by Customer that caused such claim.

12.3 POTENTIAL INFRINGEMENT
If we believe the Services may infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then we may:

1. obtain the right for you, at our expense, to continue using the Services;
2. provide a non-infringing functionally equivalent replacement; or
3. modify the Services so that they no longer infringe.
If we do not believe that the options above are commercially reasonable, then we may suspend or terminate your use of the impacted Services and provide you with a pro rata refund of any fees prepaid by you applicable to the period following the termination of such Services.

12.4 INDEMNITY PROCEDURES
A party seeking indemnification under this Agreement will promptly notify the other party of the claim and cooperate with the other party in defending the claim. If permitted by applicable law, the indemnifying party will have full control and authority over the defence, except that:

1. any settlement requiring the indemnified party to admit liability or to pay any money will require that party’s prior written consent (such consent not to be unreasonably withheld or delayed); and
2. the indemnified party may join in the defence with its own counsel at its own expense.
Nothing in this Agreement will restrict or limit a party’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under Clauses 11.1 and 11.2. The indemnities in this Agreement are a party’s sole and exclusive remedy under this Agreement for violation by the other party of a third party’s Intellectual Property Rights.

13.1 DISCLAIMERS
Except as expressly provided in this Agreement and to the extent permitted by applicable law, neither party makes any warranties of any kind, express, implied, statutory, or otherwise, including those of merchantability, fitness for a particular purpose, and non-infringement. Daysium provides the services on an “as is” basis and, except as expressly provided in this Agreement and to the extent permitted by applicable law, we make no representations regarding the availability, reliability, or accuracy of the Services or any portion thereof, or regarding any Customer Data or other content associated with your account.

13.2 EXCLUSION OF LIABILITY
To the extent permitted by applicable law, neither party will be liable for any lost profits, business interruption, replacement Services or any indirect, consequential, special, incidental, punitive, or exemplary damages arising out of or in connection with this Agreement, even if the party knew or should have known that such damages were possible and even if a remedy fails of its essential purpose, and regardless of the theory of liability.

13.3 LIMITATION OF LIABILITY
To the extent permitted by applicable law, the aggregate liability of either party arising out of or in connection with this Agreement will not exceed the total amounts paid or payable by you to Daysium under this Agreement during the 12 months prior to the event giving rise to the liability or claim.

13.4 EXCEPTIONS TO LIMITATIONS
Clause 13.3 (Limitation of liability) does not apply to each party’s indemnification obligations set forth in clauses 12.1 and 12.2.

14.1 AGREEMENT AMENDMENTS
Daysium may amend this Agreement from time to time and the most current version will be posted on Daysium’s website. If an amendment is material, as determined in Daysium’s reasonable discretion, we will notify the Customer contact by email or when they next log in to your account. Except in the case of an amendment being made to satisfy legal requirements, we will provide you with advance notice of material amendments.

If an amendment has a material adverse impact on the data privacy or security of your Customer Data and you do not agree to the amendment, you may terminate the Agreement by notifying our team within 30 days of receiving notice of the amendment or date of publication of the updated version (otherwise, you will have been deemed to have consented to the amendment).
The terms and conditions of the updated version of this Agreement shall apply to all existing Schedules and new Schedules following the date of publication of the updated version.

15.1 DISPUTE RESOLUTION
Before commencing any form of litigation, including court proceedings, professional mediation or arbitration, each party agrees to:

1. give the other party notice of the dispute and its nature
2. give the other party the opportunity to remedy any breach of this Agreement within 30 days; and
3. hold good faith negotiations with the other party to settle the disputed matter.

15.2 GOVERNING LAW
This Agreement, The Services and any relevant interaction between both parties (including before any contract is made) shall be governed by and construed in accordance with the laws of Jersey and you agree to submit to the non-exclusive jurisdiction of the courts of Jersey in relation to any claim, dispute or difference arising under or in connection with the Schedules, the Services or any such interaction.

If any dispute or difference shall arise between the parties then if the same cannot be settled amicably it shall be referred to the arbitration of a single arbitrator to be agreed by you and Daysium or in default of agreement to be appointed by the President for the time being of the Law Society of Jersey. The costs of any such arbitration shall be in the discretion of the arbitrator whose award will be considered and taken by both parties as final and binding.

Each clause or term of this Agreement constitutes a separate and independent provision. If any of the provisions of the Agreement are judged by any court or authority of competent jurisdiction to be void or unenforceable, the remaining provisions shall continue in full force and effect.

15.3 INJUNCTIONS
Nothing in this Agreement prevents a party from seeking a temporary restraining order, injunction, or other equitable relief in relation to a breach (or attempted breach) of this Agreement by the other party.

16.1 ASSIGNMENT
Neither party may assign this Agreement without the other party’s prior written consent (such consent not to be unreasonably withheld). However, both parties may assign this Agreement without notice to an affiliate or to a successor or acquirer, as the case may be, in connection with a merger, acquisition, corporate reorganisation or consolidation, or the sale of all or substantially all of the party’s assets or its business to which the subject matter of this Agreement relates. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns. Any other attempt to transfer or assign this Agreement or any rights or obligations under this Agreement are void.

16.2 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between you and Daysium and supersedes any other prior or contemporaneous agreements, terms and conditions, written or oral concerning its subject matter. If Customer requests Daysium to reference a purchase order (PO# ), You acknowledge and agree that any reference to a purchase order in any associated invoice is solely for your convenience in record keeping, and no such reference or any delivery of Services to you following receipt of any purchase order will be deemed an acknowledgement of or agreement to any terms or conditions associated with any such purchase order or in any way be deemed to modify, alter, supersede or supplement this Agreement. The terms and conditions of this Agreement are the exclusive agreement of you and Daysium with respect to the subject matter of this Agreement and no other terms or conditions will be binding upon Daysium or otherwise have any force or effect.

16.3 FORCE MAJEURE
Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, governmental action, pandemic, health emergency or general internet disturbance) that was beyond the party’s reasonable control (except for payment of any money owed).

16.4 INDEPENDENT CONTRACTORS
The relationship between the parties is that of independent contractors, and not legal partners, employees, or agents of each other.

16.5 INTERPRETATION
The use of the terms includes, including, such as and similar terms, will be deemed not to limit what else might be included.

16.6 NO WAIVER
A party’s failure or delay to enforce a provision under this Agreement is not a waiver of its right to do so later.

16.7 NOTICES
All notices must be in writing and will be deemed given when:

1. verified by written receipt, if sent by postal mail with verification of receipt service or courier;
2. received, if sent by mail without verification of receipt; or
3. when verified by automated receipt or electronic logs if sent by email.
Notices to Daysium must be sent to Days Limited’s registered office from time to time. Notices to you may be sent to the email address associated with the Customer contact details of your account. You must keep the contact details associated with your account current and accurate by notifying Daysium’s team when your contact details change. You may grant approvals, permission, extensions, and consents by email.

16.8 SEVERABILITY
If any provision of this Agreement is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed from this Agreement and the remaining terms will remain in full effect.

16.9 THIRD PARTY BENEFICIARIES
There are no third-party beneficiaries to this Agreement. Your Users are not third-party beneficiaries to your rights under this Agreement.