Ark 51 Master Terms
(Version 2.4 dated 4 July 2025)
Parallel 51 Limited aims to provide the most cost-effective solution possible to clients. As a consequence, it is a very lean business, which does not employ lawyers to negotiate documentation on its behalf. Moreover, the allocation of risk within these Master Terms attempts to strike a fair balance between the needs of ALL of our clients, the needs of our business, and avoiding unnecessary expenditure. Please be aware that, in order to keep the cost of providing Ark 51 to a minimum and in order that all clients are treated equitably, there are limits on the degree to which we are able to move away from the positions documented below.
These Master Terms detail our standard support package. Our support package is designed to strike a balance between keeping costs for users as low as possible, whilst reflecting the fact that issues around documentation are likely to be important, but not mission critical. If our standard support package does not meet your requirements, we are happy to discuss in further detail a more suitable support solution. However, please note that this will impact the pricing for the Software.
The Supplier will provide the Software and the Services (if any) set out in the relevant Order Form to the Client on the terms and conditions set out in these Master Terms.
1. Definitions
1.1 In these Master Terms the following definitions will apply:
“Ark 51” means the cloud-based solution accessible through app.ark-51.com and consisting of Ark 51 Repository, Ark 51 Opinions, Ark 51 Chatbot and Ark 51 DORA all as further defined in the Documentation;
“Ark 51 Chatbot” means the optional chatbot functionality which exists within the Software, as further described in the Documentation.
“Ark 51 DORA” means the Ark 51 DORA module as further described in the Documentation;
“Ark 51 Opinions” means the Ark 51 Opinions module, pursuant to which close-out netting and collateral enforceability opinions are stored and analysed, as further described in the Documentation;
“Ark 51 Repository” means the Ark 51 Repository module pursuant to which various types of documentation are stored and analysed, as further described in the Documentation;
“Authorised Users” means those employees, agents and independent contractors of the Client who are authorised to use the Services, as further described in Clause 2 (Subscription) and the Order Form;
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
“Client” means the entity making use of the Services and the Documentation and identified as such in the Order Form;
“Client Data” means the data inputted by the Client, Authorised Users, or the Supplier on the Client’s behalf, for the purpose of using the Services and, for the avoidance of doubt, Client Data shall not include any anonymised, aggregated data created by the Supplier for the purposes set out in clause 4.8 (Client Data) any other data or metadata related to any document uploaded into the Software, any JSON schema of any such document, or any metadata generated as part of Ark 51’s Optical Character Recognition (“OCR”) process;
“Confidential Information” means all information in whatever form which relates to a party’s business, services and products, developments, trade secrets, know-how, processes, methodologies, personnel, suppliers and clients (whether or not designated as “confidential information” by the party to which it relates) together with all information derived from the above;
Data Protection Legislation means all applicable data protection and privacy legislation in force from time to time in the UK including:
(a) The UK GDPR;
(b) The GDPR;
(c) Directive 2002/58/EC (ePrivacy Directive);
(d) The Privacy and Electronic Communications (EC Directive) Regulations 2003;
(e) The UK Data Protection Act 2018;
(f) Any laws which implement or supplement any such laws; and
(g) Any laws which replace, extend, re-enact, consolidate or amend any of the foregoing
and “Data Controller”, “Data Processor”, “Data Subject”, “international organisation”, “Personal Data” and “processing” or similar expressions shall have the meaning given to them in the relevant Regulations with Personal Data including sensitive personal data;
“Documentation” means the documentation relating to the Software (including the user manual) made available to the Client from time to time;
“Effective Date” means the date set out in the Order Form;
“Fee Increase” has the meaning ascribed to such term in Clause 7.6 of these Master Terms;
“Fees” means either or both of the Subscription Fees or the Professional Services Fees;
“Force Majeure Event” has the meaning ascribed to such term in Clause 13 of these Master Terms;
“GDPR” means, as applicable to either Party from time to time the General Data Protection Regulation (Regulation (EU) 2016/679);
“Handover Materials” means (a) a copy of each document uploaded into the Software (in the same file format as that uploaded into the Software) and delivered to the Client in one or more .zip files, and (b) a copy of all of data relating to contractual terms which has been directly extracted (whether by way of manual review or by way of artificial intelligence) from each document and delivered to the client in one or more .csv files. The definition of “Handover Materials” excludes all other data or metadata related to any document uploaded into the Software, including (without limitation) any JSON schema of any such document or any metadata generated as part of Ark 51’s Optical Character Recognition (“OCR”) process.
“Heightened Cybersecurity Requirements” means any laws, regulations, codes, guidance (from regulatory and advisory bodies whether mandatory or not), international and national standards and sanctions, which are applicable to either the Client or an Authorised User relating to security of network and information systems and security breach and incident reporting requirements;
“Initial Subscription Term” means the initial term relating to the use of the Software as set out in the Order Form;
“Insolvency Event” means that a Party:
(a) Is unable to pay its debts or becomes insolvent or bankrupt or ceases to trade;
(b) Is the subject of an order made or a resolution passed for the administration, winding-up or dissolution (otherwise than for the purpose of a solvent amalgamation or reconstruction, which does not materially reduce that entity’s assets);
(c) Has an administrative or other receiver, manager, trustee, liquidator, administrator, or similar officer appointed over all of any substantial part of its assets;
(d) Enters into or proposes any composition or arrangement with its creditors generally (otherwise than for the purpose of a financing or solvent amalgamation or reconstruction, which does not materially reduce the entities’ assets); or
(e) Is the subject of any events or circumstances analogous to any of the foregoing in any applicable jurisdiction.
“Losses” means all losses, liabilities, costs (including reasonable legal costs), fines, penalties, charges, expenses, actions, procedures, claims, demands and damages (including the amount of damages awarded by a court of competent jurisdiction);
“Master Terms” means these terms, together with any Order Form;
“Normal Business Hours” means 9.30 am to 5.30 pm local UK time, each Business Day;
“Order Form” means the form or online subscription process by which the Client agrees to subscribe to the Services;
“Permitted Purposes” means those purposes detailed within the appropriate Order Form;
“Post-Termination Assistance” means the provision of the Handover Materials by the Supplier to the Client on the terms documented within these Master Terms;
“Professional Services” means configuration, development, consulting and/or other services (if any) of the Software, as may be agreed between the Supplier and the Client;
“Professional Services Fees” means the fees payable with respect to Professional Services, as detailed in the Order Form;
“Regulations” means any law, enactment, regulation, regulatory policy, guideline, and requirement of any Regulatory Authority (including good practice codes) applicable to a party and/or to any of the activities of a party;
“Regulatory Authority” means any governmental, regulatory or other competent authority that regulates and/or supervises any of the Client, the Supplier and/or either of their activities;
“Renewal Amount” means an amount equal to the percentage increase in the Retail Prices Index (as published by the UK office for National Statistics) with respect to the 12-month period nearest preceding the commencement of the relevant Renewal Period, plus 2%.
“Renewal Period” means the period described in clause 12.1 (Term and Termination);
“Services” means the Subscription Services and the Professional Services (if any);
“Software” means the online software application known as Ark 51;
“Subscription Fees” means the subscription fees payable by the Client to the Supplier for the Subscription as set out in the Order Form;
“Subscription” means the user subscriptions purchased by the Client pursuant to Clause 7.1 (Charges and Payment) which entitle Authorised Users to access and use the Software in accordance with these Master Terms;
“Subscription Services” means the provision to the Authorised Users of access to, and use of, the Software, as more particularly described in the relevant Order Form..
“Supplier” means Parallel 51 Limited (Company Number 10530679) of Marlborough House, Marlborough Crescent, Newcastle upon Tyne, NE1 4EE;
“Supplier’s Standard Rates” means the rates charged by the Supplier from time to time, which are charged in 4-hour blocks and which can be found at https://ark-51.com/ark-51-daily-rates-25/;
“Term” means the Initial Subscription Term together with any subsequent Renewal Periods;
“UK GDPR” means Regulation (EU) 2016/679 (General Data Protection Regulation), as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018, (including as further amended or modified by the laws of the United Kingdom or a part of the United Kingdom from time to time);
“Virus” means any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by 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;
“Vulnerability” means a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term “Vulnerabilities” shall be construed accordingly;
“Website” means either app.ark-51.com or any other website notified to the Client by the Supplier from time to time.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of these Master Terms.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of these Master Terms.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of these Master Terms under that statute or statutory provision.
1.9 A reference to writing or written includes e-mail.
1.10 References to clauses and schedules are to the clauses and schedules of these Master Terms; references to paragraphs are to paragraphs of the Order Form.
1.11 In the event of any conflict between the Ark 51 Master Terms and the Order Form then the terms of the relevant Order Form shall take precedence.
1.12 The Order Form shall only be binding on the Parties when duly executed on behalf of both Parties.
2. Subscription
2.1 Subject to:
2.1.1 the Client paying the Subscription Fees in accordance with these Master Terms;
2.1.2 the restrictions set out in this Clause 2 (Subscription); and
2.1.3 the provisions of these Master Terms,
the Supplier hereby grants to the Client a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Software during the Term solely for the Permitted Purposes.
2.2 The Client shall not:
2.2.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
2.2.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reproduce or reduce to human-perceivable form all or any part of the Software; or
2.2.3 access all or any part of the Software and Documentation in order to build a product or service which competes with the Software and/or the Documentation; or
2.2.4 use the Software and/or Documentation to provide services to third parties; or
2.2.5 subject to Clause 19.1 (Assignment), license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software and/or Documentation available to any third party except the Authorised Users, or
2.2.6 attempt to obtain, or assist third parties in obtaining, access to the Software and/or Documentation, other than as provided under this Clause 2 (Subscription); or
2.2.7 introduce, or permit the introduction of, any Virus or Vulnerability into the Supplier’s network and information systems.
2.3 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
2.4 The rights provided under this Clause 2 (Subscription) are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client.
3. Services
3.1 The Supplier shall, during the Term, provide the Software and make available the Documentation to the Client on and subject to these Master Terms.
3.2 The Supplier shall use commercially reasonable endeavours to make the Software available 99.9% of the time twenty-four (24) hours a day, seven (7) days a week, three hundred and sixty-five (365) days a year measured on a quarterly basis except for:
3.2.1 planned maintenance; and
3.2.2 unscheduled maintenance performed outside Normal Business Hours.
3.3 The Supplier will, with respect to the Software, provide the Client with the Supplier’s standard Client support services during Normal Business Hours as further set out in Order Form (the “Support Services”). The Supplier may amend the Support Services on no less than sixty (60) days’ notice in writing to the Client and shall ensure that any amendment to the Support Services does not materially adversely affect or reduce the Support Services.
3.4 In addition to the provision of the Software, and subject to payment by the Client of the Professional Services Fees, the Client may from time to time ask the Supplier to provide Professional Services.
3.5 The Supplier and the Client acknowledge that, depending on the nature of any Professional Services to be provided by the Supplier to the Client, it may be necessary to document the provision of such Professional Services under a separate agreement.
3.6 The Order Form shall form part of these Master Terms and shall not create a separate Agreement.
4. Client Data
4.1 The Client shall own all right, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.
4.2 The Client shall maintain the original versions of all documentation in which Client Data exists in their own systems and shall only upload copies of such documentation to the Software.
4.3 In the event of any loss or damage to Client Data caused by the Supplier’s breach of these Master Terms, the Client’s sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data. Notwithstanding the terms of this clause 4.3, the Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party.
4.4 Both Parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 4 (Client Data) is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
4.5 The Parties acknowledge that:
4.5.1 if the Supplier processes any personal data on the Client’s behalf when performing its obligations under these Master Terms, the Client is the controller and the Supplier is the processor for the purposes of the Data Protection Legislation.
4.5.2 The purpose of the processing is the provision of the Services in accordance with these Master Terms.
4.5.3 The duration of the processing is the Term.
4.5.4 The personal data transferred may concern employees, partners, directors, agents and staff including temporary workers and these categories include current, past and prospective data subjects and where any of the categories is a business or organisation then it includes their staff and Clients as appropriate.
4.5.5 The personal data transferred may concern the following categories of data:
(a) Identification data (including, without limitation, name, address, photo);
(b) Contact data (including, without limitation, email addresses/telephone numbers (home and work)); and
(c) Position data (including, without limitation, title/role/grade/job description).
4.5.6 The personal data transferred does not concern any special categories data.
4.5.7 Subject to clause 4.7.2 below the personal data may be transferred or stored outside the United Kingdom or the EEA in order to carry out the Services and the Supplier’s other obligations under these Master Terms.
4.6 Without prejudice to the generality of Clause 4.3 (Client Data), the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of these Master Terms so that the Supplier may lawfully use, process and transfer the personal data in accordance with these Master Terms on the Client’s behalf.
4.7 Without prejudice to the generality of Clause 4.3 (Client Data), the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under these Master Terms:
4.7.1 process that personal data only on the instructions contained in these Master Terms and set out on the Website and acknowledged by the Client, unless the Supplier is required by Data Protection Legislation to process personal data;
4.7.2 not transfer any personal data outside of the United Kingdom or the EEA unless the following conditions are fulfilled:
(a) the Client or the Supplier has provided appropriate safeguards in relation to the transfer;
(b) the data subject has enforceable rights and effective legal remedies;
(c) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(d) the Supplier complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the personal data;
4.7.3 assist the Client, at the Client’s 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;
4.7.4 notify the Client without undue delay on becoming aware of a personal data breach;
4.7.5 on termination of these Master Terms, and when it is no longer necessary to retain the personal data, delete all personal data and copies thereof 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
4.7.6 subject to Clause 4.7.5, maintain complete and accurate records and information to demonstrate its compliance with this Clause 4 (Client Data) and immediately inform the Client if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
4.8 Each party shall ensure that it has 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, 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).
4.9 The Client consents to the Supplier appointing Document Risk Solutions Limited, Amazon Web Services EMEA SARL and Microsoft Corporation as third-party processors of personal data under these Master Terms. The Supplier confirms that it has entered into a written agreement on those third party’s standard terms of business.
4.10 The Supplier shall inform the Client in writing at least 20 Business Days in advance of any intended changes to the list of sub-processors set out in clause 4.9 (Client Data) through either the addition or replacement of sub-processors thereby giving the Client sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The Supplier shall provide the Client with the information necessary to enable the Client to exercise its rights to object under clause 4.11 (Client Data).
4.11 The Client shall have the right to object to any proposed new sub-processor. If the Client objects, the parties will promptly discuss the concerns and any steps that can be taken to mitigate such concerns, The Supplier may propose changes to the Services or the Agreement to address these. If the parties cannot agree within 10 Business Days of the objection then either party may terminate these Master Terms.
4.12 Subject always to the provisions of this clause 4 in respect of Personal Data, the Client acknowledges and agrees that the Supplier may use and disclose usage information from Client’s and Authorised User’s activity on and relating to the Services in aggregated and anonymized form:
4.12.1 to improve the Services and the Supplier’s products and services;
4.12.2 to provide analytics and benchmarking services; and
4.12.3 to generate and disclose statistics regarding use of the Software;
provided, however, that such use shall in no way identify the Client, the Client’s Authorised Users or any Client Data.
5. Supplier’s Obligations
5.1 The Software will be provided substantially in accordance with the Documentation and with reasonable skill and care.
5.2 The Supplier may amend the Documentation from time to time in its sole discretion provided that no such modification will materially degrade the level of service or other benefits provided to Client under the version of the Documentation in place as at the date of these Master Terms.
5.3 The Professional Services will be performed with reasonable skill and care and substantially in accordance with the Order Form.
5.4 Clauses 5.1 and 5.3 (Supplier’s Obligations) shall not apply to any failure of performance which is caused by the use of the Software contrary to the Supplier’s instructions, or modification or alteration of the Software by any party other than the Supplier or the Supplier’s duly authorised contractors or agents.
5.5 If the Services do not conform with Clauses 5.1 and 5.3 (Supplier’s Obligations), Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Client’s sole and exclusive remedy for any breach of Clauses 5.1 and 5.3 (Supplier’s Obligations).
5.6 The Supplier:
5.6.1 does not warrant that:
(a) the Client’s use of the Software will be uninterrupted or error-free; or
(b) that the Software, Documentation and/or the information obtained by the Client through the Software or Services will meet the Client’s requirements; or
(c) the Software or the Services will be free from Vulnerabilities; or
(d) the Software, Documentation or Services will comply with any Heightened Cybersecurity Requirements;
5.6.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data, including Client Data, over communications networks and facilities, including the internet, and the Client acknowledges that the Software and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.7 The Supplier warrants that:
5.7.1 subject always to clause 6.1.3 (Client’s Obligations), it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Master Terms, and
5.7.2 it shall, on an ongoing basis, implement such measures as can reasonably be regarded as good industry practice (including, without limitation, penetration testing of the Software) with a view to maintaining the availability, and preserving the security, of the Software.
5.8 The Supplier reserves the right to make improvements, substitutions, modifications or enhancements to any part of the Software provided that the functionality and performance of the Software will not be negatively impacted.
6. Client’s Obligations
6.1 The Client shall:
6.1.1 without affecting its other obligations under these Master Terms, comply with all applicable Regulations with respect to its activities under these Master Terms;
6.1.2 ensure that the Authorised Users use the Software and the Documentation in accordance with these Master Terms and shall be responsible for any Authorised User’s breach of these Master Terms;
6.1.3 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under these Master Terms; and
6.1.4 be, to the extent permitted by law and except as otherwise expressly provided in these Master Terms, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.
6.2 The Client shall not access, store, distribute or transmit any Viruses or any material during the course of its use of the Software 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;
6.2.6 is not a document that the Software was reasonably intended for; or
6.2.7 is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to the Services on account of any material that breaches the provisions of this clause.
7. Charges and Payment
7.1 The Supplier shall invoice the Client for the Fees in accordance with this Clause 7 (Charges and Payment) and the Order Form.
7.2 The Client understands that:
7.2.1 The Fees with respect to the Ark 51 Repository module are charged monthly in advance;
7.2.2 The Fees with respect to the Ark 51 Chatbot are charged monthly in advance;
7.2.3 The Fees with respect to the Ark 51 Opinions module are a single payment, charged in advance and by reference to the number of netting and collateral opinions to which the Client requires access, which provides access to the agreed netting and collateral opinions for a period of 12 months from the date of payment; and
7.2.4 The Fees with respect to the Ark 51 DORA module are charged monthly in advance.
7.3 The Client shall pay the Fees within 30 days of receipt of an invoice from the Supplier (the “Due Date”).
7.4 If the Supplier has not received payment within 30 days after the Due Date, and without prejudice to any other rights and remedies of the Supplier then interest shall accrue on a daily basis on such due amounts at an annual rate equal to 2% over the then current Bank of England base lending rate from time to time, commencing on the Due Date and continuing until fully paid, whether before or after judgment.
7.5 All amounts and fees stated or referred to in these Master Terms:
7.5.1 shall be payable in pounds sterling;
7.5.2 are, subject to Clause 11.3.2 (Limitation of Liability), non-cancellable and non-refundable;
7.5.3 are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
7.6 Upon the commencement of any Renewal Period, the relevant “Subscription Fee(s)” shall increase by the “Renewal Amount” (a “Fee Increase”). Such Fee Increase shall take effect at the commencement of the relevant Renewal Period.
8. Proprietary Rights
8.1 The Client acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services, the Software, and the Documentation. Except as expressly stated herein the Client does not acquire any rights to, under, or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services, the Software or the Documentation.
8.2 The Supplier confirms that it has all the rights in relation to the Services, the Software and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of these Master Terms.
8.3 The Client acknowledges and agrees that:
8.3.1 in the event that a change of applicable law means the Supplier can no longer provide all or part of the Services; or
8.3.2 if the Supplier no longer has the right to provide the Software or any component module thereof;
then the Supplier may procure the right for the Client to continue using the Software, replace or modify the Software so that it becomes non-infringing or, if such remedies are not reasonably available, terminate all or part of these Master Terms immediately on notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.
9. Confidentiality
9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Master Terms. A party’s Confidential Information shall not be deemed to include information that:
9.1.1 is or becomes publicly known other than through any act or omission of the receiving party in breach of these Master Terms;
9.1.2 was in the other party’s lawful possession before the disclosure;
9.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
9.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
9.2 Subject to Clause 9.3 (Confidentiality), 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 the implementation of these Master Terms.
9.3 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 9.3 (Confidentiality), it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
9.4 The Client acknowledges that details of the Services and the Software form part of the Supplier’s Confidential Information.
9.5 The Supplier acknowledges that the Client Data forms part of the Client’s Confidential Information.
9.6 The provisions of this Clause 9 (Confidentiality) shall survive termination of these Master Terms, however arising.
9.7 The parties agree that breach of this clause 9 (Confidentiality) will cause the party disclosing such Confidential Information (“the Disclosing Party”) irreparable damage for which recovery of damages would be inadequate recompense, and that in the event of any actual, likely, or threatened breach of this clause 9 (Confidentiality), the Disclosing Party shall be entitled to apply for injunctive relief.
10. Indemnity
10.1 Subject to normal common law rules of causation and foreseeability of loss, and the Supplier’s duty to mitigate any such Losses, and save to the extent caused by the Supplier’s default, the Client shall indemnify the Supplier against any Losses arising out of or in connection with the Client’s use of the Software and/or Documentation other than in accordance with these Master Terms.
Provided always that:
10.1.3 the Client is given prompt notice of any such claim;
10.1.4 the Supplier provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense; and
10.1.5 the Client is given sole authority to defend or settle the claim.
10.2 The Supplier shall defend the Client, its officers, directors and employees against any claim that the Client’s use of the Software or Documentation in accordance with these Master Terms infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and, subject to normal common law rules of causation and foreseeability of loss, and the Client’s duty to mitigate any such loss, shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:
10.2.1 the Client is currently paying the Subscription Fees for use of the Software;
10.2.2 the Supplier is given prompt notice of any such claim;
10.2.3 the Client provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
10.2.4 the Supplier is given sole authority to defend or settle the claim.
10.3 In the defence or settlement of any claim, or in the event that the Supplier reasonably suspects that the Software may infringe any third party intellectual property rights, then the Supplier may procure the right for the Client to continue using the Software, replace or modify the Software so that it becomes non-infringing or, if such remedies are not reasonably available, terminate these Master Terms immediately on notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.
10.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:
10.4.1 a modification of the Software or Documentation by anyone other than the Supplier; or
10.4.2 the Client’s use of the Software or Documentation in a manner contrary to the instructions given to the Client by the Supplier; or
10.4.3 the Client’s use of the Software or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
10.5 The foregoing and Clause 11.3.2 (Limitation of Liability) state the Client’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
11. Limitation of Liability
11.1 Notwithstanding any other provisions of in these Master Terms:
11.1.1 the Client acknowledges and agrees that:
(a) the Software, its features and any information generated (including insights, responses, analysis and recommendations) by the Supplier or the Software are intended to provide information and insights based on the input and instructions given by the user;
(b) the Client assumes sole responsibility for results obtained from its use of the Software and the Documentation, and for conclusions drawn from such use;
(c) Ark 51 Opinions provides a summary of the relevant underlying opinion and whilst the Supplier will use good industry practice in the creation of such summary it is not intended as a substitute for the opinion itself;
(d) the Supplier is not a law firm and does not provide legal or professional advice and the Client should not rely solely on the information provided by the Supplier of the Software for making legal, regulatory or other important professional decisions;
(e) the Client is responsible for its compliance with all relevant Regulations and the accuracy of all Client Data provided to the Supplier;
(f) the Supplier’s sole liability in respect of the Professional Services is to use reasonable skill and care; and
(g) the Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Client in connection with the Software or the Services, or any actions taken by the Supplier at the Client’s direction;
11.1.2 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 these Master Terms; and
11.1.3 the Software and the Documentation are provided to the Client on an “as is” basis.
11.2 Nothing in these Master Terms excludes the liability of either party:
11.2.1 for death or personal injury caused by the Supplier’s negligence; or
11.2.2 for fraud or fraudulent misrepresentation;
11.3 Subject to Clause 11.1 (Limitation of Liability) and Clause 11.2 (Limitation of Liability):
11.3.1 neither Party shall be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses, loss or corruption of data or information, pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Master Terms; and
11.3.2 neither Party’s total aggregate liability in contract (including in respect of the indemnity at Clause 10.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms and Conditions shall exceed the total Fees paid or payable by the Client during the 12 months immediately preceding the date on which the claim arose.
11.4 Notwithstanding any other provision of these Master Terms, the liability of the Supplier pursuant to Clause 10.2 of these Master Terms shall not be limited.
12. Term and Termination
12.1 These Master Terms shall, unless otherwise terminated as provided in this clause 12 (Term and Termination) commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, these Master Terms shall be automatically renewed for successive periods of 12 months (each a Renewal Period) unless:
12.1.1 either Party notifies the other Party in writing that it wishes to terminate these Master Terms at least sixty (60) days before the end of the Initial Subscription Term or any Renewal Period in which case these Master Terms shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
12.1.2 otherwise terminated in accordance with this Clause 12 (Term and Termination).
12.2 Without affecting any other right or remedy available to it, either Party may terminate these Master Terms with immediate effect by giving written notice to the other Party if:
12.2.1 the other Party fails to pay any amount due under these Master Terms on the due date for payment and remains in default not less than thirty days (30) after being notified in writing to make such payment;
12.2.2 the other Party commits a material breach of any other term of these Master Terms which breach is incapable of remedy or (if such breach is capable of remedy) fails to remedy that breach to the other Party’s reasonable satisfaction within a period of thirty (30) days after being notified in writing to do so;
12.2.3 the other Party repeatedly breaches any of the terms of these Master Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Master Terms; or
12.2.4 the other Party suffers an Insolvency Event.
12.3 Notwithstanding any other provision of this Clause 12, the Client may terminate these Master Terms by giving the Supplier not less than thirty (30) days’ notice following receipt by the Client of any notification from the Supplier of a Fee Increase.
12.4 On termination of these Master Terms for any reason:
12.4.1 all licences granted under these Master Terms shall immediately terminate and the Client shall immediately cease all use of the Software and/or the Documentation;
12.4.2 the Supplier may destroy or otherwise dispose of any of the Client Data in its possession in accordance with Clause 4.7.5 (Client Data); and
12.4.3 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these Master Terms which existed at or before the date of termination shall not be affected or prejudiced.
12.5 This clause 12.5 documents the agreement of the Supplier and the Client with respect to Post-Termination Assistance.
12.5.1 If, following termination of these Master Terms, the Client wishes to obtain Post-Termination Assistance, it must notify the Supplier in writing of such fact within 10 Business Days of the termination of these Master Terms.
12.5.2 All Post-Termination Assistance shall be charged at the Supplier’s Standard Rates in force at the relevant time.
12.5.3 The Supplier, acting reasonably, shall determine the level of expertise and experience required in order to deliver Post-Termination Assistance.
12.5.4 The Handover Materials shall be provided within 10 Business Days of the full and final settlement of all outstanding invoices (including, for the avoidance of doubt, all invoices relating to the provision of Post-Termination Assistance).
12.5.5 The Client acknowledges and agrees that, except to the extent that the Supplier might otherwise agree in writing, this Clause 12.5 documents the full extent of any obligation on the part of the Supplier to provide assistance to the Client following termination of these Master Terms.
13. Force Majeure
The Supplier shall have no liability to the Client under these Master Terms if it or its suppliers or sub-contractors is prevented from or delayed in performing its obligations under these Master Terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (a “Force Majeure Event”). The Supplier will, promptly on becoming aware, notify the Client of the occurrence of any Force Majeure Event. During the continuance of any Force Majeure Event, the Supplier will use all reasonable endeavours to mitigate the effects of such Force Majeure Event and to restore the Services as soon as reasonably practicable.
14. Variation
No variation of these Master Terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15. Waiver
No failure or delay by a party to exercise any right or remedy provided under these Master Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16. Rights and Remedies
Except as expressly provided in these Master Terms, the rights and remedies provided under these Master Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
17. Severance
If any provision or part-provision of these Master Terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Master Terms.
18. Entire Agreement
18.1 These Master Terms constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
18.2 Each party acknowledges that in entering into these Master Terms it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Master Terms.
18.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Master Terms.
18.4 Nothing in this clause shall limit or exclude any liability for fraud.
19. Assignment
19.1 The Client shall not, without the prior written consent of the Supplier (not to be unreasonably withheld or delayed), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Master Terms.
19.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Master Terms. If the Supplier assigns or transfers its rights or obligations under these Master Terms it will notify the Client in advance in writing of such assignment/transfer.
20. No Partnership or Agency
Nothing in these Master Terms 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).
21. Third Party Rights
These Master Terms does not confer any rights on any person or party (other than the parties to these Master Terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
22. Notices
22.1 Any notice required to be given under these Master Terms shall be in writing and shall be delivered by email to the Supplier or the Client (as the case may be) at the relevant email address specified within the Order Form.
22.2 A notice delivered by email shall be deemed to have been received at the time of transmission. If deemed receipt would occur outside business hours in the place of receipt then delivery shall be deemed to have occurred on the next business day in the place of receipt at the commencement of normal business hours.
23. Governing Law
These Master Terms and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
24. Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Master Terms or its subject matter or formation (including non-contractual disputes or claims).
25. Ark 51 Chatbot
25.1 This Clause 25 applies if, and to the extent that, the Client has access to the Ark 51 Chatbot.
25.2 The Ark 51 Chatbot provides users of the Software with the ability to query documentation via the Software’s artificial intelligence engine using natural language prompts. Each query submitted via the Ark 51 Chatbot costs money. Unfortunately, it is not possible to know with certainty, before the event, exactly how much each query will cost.
25.3 Users of the Software must not use the Ark 51 Chatbot, or permit the Ark 51 Chatbot to be used, for any purpose other than the Permitted Purposes and to the extent strictly related to querying the Client’s documentation that has been uploaded into the Software. In particular, users of the Software must not use the Ark 51 Chatbot in a way that breaches any regulation, legislation or licence, or threatens the integrity of the Software. The Client acknowledges that it is responsible for any queries submitted to the Ark 51 Chatbot via its account as well as all Losses incurred by the Supplier as a result.
25.4 If the Client (a) breaches the terms of this provision, or (b) incurs costs related to its use of the Ark 51 Chatbot in any month which exceed the “Subscription Fee” related to its use of the Ark 51 Chatbot then the Supplier reserves the right, without notice, to restrict, suspend, block or terminate the Client’s access to the Ark 51 Chatbot, pending acceptable resolution of the matter.
25.5 The Client acknowledges and agrees that the effective administration of this ‘fair use’ provision requires the exercise of discretion and judgment on the part of the Supplier. The Supplier will act in a commercially reasonable manner in both the administration of this ‘fair use’ provision and the exercise of any discretion and/or judgment thereunder.
26. Miscellaneous
26.1 It is technically possible for the Supplier to access the Client’s instance of the Software via one or more user accounts (“System Administrator Access”). The advantage of System Administrator Access to the Client is that the Supplier can more effectively and efficiently provide technical and subject-matter support to the Client, should this be required. The Client and the Supplier shall specify within the Order Form whether “System Administrator Access” is “Applicable” or “Not Applicable. If nothing is specified within the Order Form, “System Administrator Access” shall be “Applicable”. The Client can revoke System Administrator Access by giving the Supplier not less than 3 Business Days’ notice in writing at any time (for which purposes an email sent to [email protected] will suffice). Even in circumstances where “System Administrator Access” is “Applicable”, the Supplier shall not access the Client’s instance of the Software unless requested to do so by the Client.
DORA Provisions
The following provisions of clause 26 are referred to herein as the “DORA Provisions”. They are only applicable to the extent stated as being “Applicable” within the Order Form.
27.1 A reference to “DORA” within this provision is a reference to Regulation (EU) 2022/2554 on digital operational resilience for the EU financial sector.
27.2 For the purposes of Article 30(2)(a) of DORA, a “clear and complete description” of the services to be provided by the Supplier is provided within Annex 1 to the Order Form. The Supplier and the Client agree that the Supplier does not provide, or otherwise perform, any functions (as such term is used within DORA) for, or on behalf of, the Client.
27.3 For the purposes of Article 30(2)(a) of DORA, the Supplier confirms that it does not sub-contract provision of the Services (although certain aspects of the technical architecture of the Software are provided by Amazon Web Services EMEA SARL and Microsoft Corporation).
27.4 For the purposes of Article 30(2)(b) of DORA, (a) the Services are provided from the United Kingdom, (b) the data underlying the Services is processed in the United Kingdom and/or the European Union, and (c) the data underlying the Services is stored in the United Kingdom. The Supplier will notify the Client at least 10 Business Days in advance if it envisages changing such locations.
27.5 For the purposes of Article 30(2)(c) of DORA, information on availability, authenticity, integrity and confidentiality in relation to the protection of data (including personal data) is as specified in the Order Form and the “Ark 51 Technical Specification” (as the same may be updated from time to time), which will be provided to the Client by the Supplier on request.
27.6 For the purposes of Article 30(2)(d) of DORA, in the event of the insolvency, resolution or discontinuation of the business operations of the Supplier, the Client can access, recover and obtain the return, in an easily accessible format, of personal and non-personal data via the reporting functionality of the Software or via the Software’s existing Application Programming Interface (“API”).
27.7 For the purposes of Article 30(2)(d) of DORA, in the event that the Services are terminated the Client can access, recover and obtain the return, in an easily accessible format, of personal and non-personal data via the reporting functionality of the Software or via the Software’s existing Application Programming Interface (“API”). The Supplier will provide the Client with all reasonable assistance in this regard. Unless otherwise agreed in the Order Form, the Client shall pay the Supplier the Supplier’s Standard Rates specified within the Order Form with respect to any such assistance.
27.8 For the purposes of Article 30(2)(e) of DORA, the service level descriptions (including updates and revisions thereof) with respect to the Software are as specified in the Order Form (as the same may be updated from time to time), which will be provided to the Client by the Supplier on request.
27.9 For the purposes of Article 30(2)(f) of DORA, the Supplier will provide all reasonable assistance to the Client when an information and communication technology incident that is related to the Services occurs with respect to the Client. Unless otherwise agreed in the Order Form, the Client shall pay the Supplier the Supplier’s Standard Rates specified within the Order Form with respect to any such assistance.
27.10 For the purposes of Article 30(2)(g) of DORA, the Supplier will fully cooperate with the competent authorities and resolution authorities applicable to the Client. Unless otherwise agreed in the Order Form, the Client shall pay the Supplier the Supplier’s Standard Rates specified within the Order Form with respect to any such assistance.
27.11 For the purposes of Article 30(2)(h) of DORA, the termination rights and related minimum notice periods for the termination of this Agreement are as specified in clause 12 (Term and Termination) of these Master Terms.
27.12 The Supplier will, to the extent reasonable, participate in any security awareness programmes and digital operational resilience training delivered by the Client. Unless otherwise agreed in the Order Form, the Client shall pay the Supplier the Supplier’s Standard Rates specified within the Order Form with respect to any such participation.
26.13 For the purposes of Article 30(3) of DORA, unless otherwise specified within the Order Form, the Supplier and the Client agree that the Services do not support a “critical or important function” of the Client