eFlow terms and conditions

EFLOW TERMS AND CONDITIONS OF ACCESS AND USE

1    THESE TERMS 

1.1    These eFIow terms and conditions of access and use (together with any terms in the engagement letter and/or proposal with Efficio (the ‘‘Proposal”) shall constitute the entire agreement relating to the content, access and use of eFIow ("Agreement”) between Efficio Limited incorporated and registered in England with company number 04010379 whose registered office is at Kinnaird House, 1 Pall Mall East, London, England, SW1Y 5AU (“Efficio”) and the Client named in the Proposal. If there is any conflict between the Proposal and these terms and conditions of access and use, save where expressly stated otherwise, these terms and conditions of access and use shall prevail in respect of eFIow.

1.2    This Agreement shall apply in relation to eFIow and shall prevail over any inconsistent terms or conditions contained, or referred to, in the Client’s correspondence, request for proposal, prior proposal, purchase order or other document of the Client. The Client’s signed acceptance of the Proposal or the Client’s or an Authorised User's use of eFIow, whichever occurs earlier, shall constitute the Client’s acceptance of this Agreement.

2    ACCESS TO EFLOW

2.1    In consideration of any payments agreed between Efficio and the Client either in this Agreement or under another contract in return for which Efficio agrees to allow access and use of eFIow, and subject to the Client’s continued compliance with the same, Efficio grants to the Client a non-exclusive, non-transferable right and licence to permit those employees, agents, bidders, potential suppliers and independent contractors of the Client who are authorised by the Client (“Authorised Users”) to use eFIow during the duration of this Agreement solely for the Client’s internal business operations and subject to the terms in this Agreement.

2.2    In relation to the Authorised Users, the Client undertakes that:

2.2.1    the maximum number of Authorised Users that it authorises to access and use eFIow shall not exceed the number of user accounts identified in the Proposal;

2.2.2    it will not allow or suffer any user account to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use eFIow;

2.2.3    each Authorised User shall keep a secure password for his use of eFIow, that such password shall be changed no less frequently than quarterly and that each Authorised User shall keep his password confidential;

2.2.4    it shall maintain a written, up to date list of current Authorised Users and provide such list to Efficio within 10 days of Efficio's written request at any time.

2.2.5    it shall permit Efficio or Efficio's designated auditor to audit the Client’s use of eFIow and compliance with this Agreement with reasonable prior notice;

2.2.5.1    if any audit referred to in clause 2.2.5 reveals or Efficio reasonably suspects that any password/ID has been provided to and/or is being used by someone who is not an Authorised User, that password/ID may be cancelled; or

2.2.5.2    if any audit referred to in Clause 2.2.5 reveals that the Client has underpaid Efficio, then without prejudice to Efficio's other rights, the Client shall pay to Efficio an amount equal to such underpayment as calculated in accordance with the prices set out in the Proposal within 10 Business Days of the date of the relevant audit; and

2.2.6    the Authorised Users use eFIow and relevant documentation in accordance with this Agreement and the Authorised User Terms and that it shall be responsible for any Authorised Users' breach of this Agreement and/or the Authorised User Terms. 

2.3    The Client shall not (and shall procure that Authorised Users shall not) access, store, distribute or transmit any viruses, malware, or any material during the course of its use of eFIow that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (f) in a manner that is otherwise illegal or causes damage or injury to any person or property; and Efficio reserves the right, without liability or prejudice to its other rights to the Client, to disable Client's access to any material that breaches provisions of this clause.

2.4    The Client shall not (and shall procure that Authorised Users shall not) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement or as otherwise agreed by the Parties:

2.4.1    attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of eFIow in any form or media or by any means; 

2.4.2    attempt to de-compile, reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of eFIow;

2.4.3    access all or any part of eFIow in order to build a product or service which competes with eFIow; 

2.4.4    use eFIow to provide services to third parties; 

2.4.5    license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make eFIow and/or relevant documentation available to any third party except the Authorised Users; or

2.4.6    attempt to obtain, or assist third parties in obtaining, access to eFIow and/or relevant documentation, other than as provided under this clause 2. 

2.5    The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, eFIow and, in the event of any such unauthorised access or use, promptly notify Efficio.

2.6    The rights provided under this clause 2 are granted to the Client only and shall not be considered granted to any subsidiary or holding company of the Client.

3    EFFICIO'S SERVICES, OBLIGATIONS AND WARRANTIES

3.1    Efficio shall use all reasonable commercial endeavours to ensure full continuity and functionality of eFIow save for:

3.1.1    planned maintenance carried out during the maintenance window as set out in the Proposal or otherwise notified to the Client; and

3.1.2    unscheduled maintenance provided that Efficio has used reasonable endeavours to give the Client at least 6 hours' notice in advance.

3.2    Materials and features may be added to or withdrawn from eFIow and eFIow otherwise changed without notice to the Client provided they do not materially adversely affect the performance of eFIow.

3.3    Efficio shall use all reasonable skill and care in providing eFIow in accordance with its specification. If eFIow does not conform with its specification and such non-conformance materially and adversely affects Client’s use of eFIow, Efficio will, at its expense, use reasonable endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Otherwise, Efficio shall address such non-conformance as part of its overall maintenance roadmap for eFIow. Such correction or substitution constitutes the Client's sole and exclusive remedy for any breach of this clause 3.3.

3.4    The undertaking at clause 3.3 shall not apply to the extent of any non-conformance which is caused by inappropriate use of eFlow contrary to the Efficio's instructions, or modification or alteration of eFlow by any party other than Efficio or Efficio's duly authorised contractors or agents. 

3.5    Efficio warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

3.6    Efficio makes no representation or warranty, express or implied, regarding suitability, originality, fitness for a particular use or purpose, or results to be derived from the use of eFlow or any materials, research, reports, indices, qualitative assessments, data, and content that Efficio has created prior to this Agreement or may thereafter create or acquire (“Efficio Data”) and provided under this Agreement.

3.7    Efficio does not warrant:

3.7.1    that the Client’s access to or use of eFIow will be uninterrupted or error-free; and

3.7.2    the accuracy of any Efficio Data or that the use of eFIow will produce any specific results.

3.8    Efficio is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that eFIow may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.

3.9    All other warranties, conditions and other terms which might have effect between the parties or be implied or incorporated into this Agreement, whether by statute, common law or otherwise, are hereby expressly excluded. 

3.10    This Agreement shall not prevent Efficio from entering into similar agreements with third parties, or from independently developing, using, selling, or licensing documentation, products and/or services which are similar to those provided under this Agreement.

4    CLIENT’S OBLIGATIONS AND ACKNOWLEDGEMENTS

4.1    The Client agrees to:

4.1.1    co-operate with Efficio in all matters relating to eFIow and, where reasonably required, provide access in a timely manner to the Client’s systems and any information and materials that may be made available or provided by or via the Client (including all inputs listed in the Proposal as the Client’s responsibility) or any of its affiliates, employees, agents or advisors (“Client Data”). 

4.1.2    comply with all applicable laws and regulations with respect to its activities under this Agreement;

4.1.3    ensure that its network and systems comply with the relevant specifications provided by Efficio from time to time;

4.1.4    be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the internet, 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; and

4.1.5    obtain and maintain all necessary licences, consents, and permissions necessary for Efficio, its contractors and agents to perform their obligations under this Agreement, including without limitation, access to and use of eFIow.

4.2    The Client acknowledges that Efficio may, in providing eFIow, use publicly available information and information contained in reports and other materials provided by third parties, including, without limitation, information provided by or on behalf of the Client and that Efficio does not assume responsibility for and may rely, without independent verification, on the accuracy and completeness of any such information. The Client agrees to furnish or cause to be furnished to Efficio all necessary and appropriate information for use in providing access to and use of eFIow under this Agreement and hereby warrants that any information relating to the Client that is provided to Efficio by or behalf of the Client will be true and accurate in all material respects, not misleading and does not infringe any intellectual property rights of any third party.

4.3    The Client acknowledges that any information or data rendered by Efficio and made available via eFIow is for the confidential use of the Client only and, subject to this Agreement, the Client will not permit any third party access to or use of eFIow or any data or information contained there without the prior written consent of Efficio (such consent not to be unreasonably withheld).

4.4    The Client acknowledges that Efficio uses third party proprietary software and/or open source software in the provision of eFIow and the Client agrees to comply with all reasonable requests of Efficio as may be required to ensure Efficio's compliance with its legal obligations to the third party software owner and/or open source licence.

4.5    The Client shall not remove or obscure the copyright notice or other notices contained in any materials retrieved from eFIow.

4.6    Efficio Data, outputs from eFIow and any forecasts and analysis made by Efficio to the Client shall not be used or relied upon by any third party. Save as with the prior written authorisation of Efficio, the Client may not publish, disclose or refer to any Efficio Data or any forecasts or analysis that Efficio may make via eFIow.

4.7    Except with the prior written authority of Efficio, the Client may not use, reproduce or display any Efficio Data or eFIow or prepare any works derived from Efficio Data or eFIow for the benefit of any person or entity other than the Client.

4.8    The access to and use of eFIow is personal to the Client and intended to be used solely and exclusively for the Client’s material business use and the Client therefore agrees that it shall not download, store, reproduce, transmit, display, print, copy, distribute or use any of eFIow or materials from eFIow. All access to and use of eFIow via mechanical, robotic or any other automated means not provided as part of eFIow is strictly prohibited. Use of eFIow is permitted only via manually conducted activities.

4.9    Efficio reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client's access to any material that breaches the provisions of this clause.

5    PROPRIETARY RIGHTS AND LICENCE IN RELATION TO EFFICIO DATA

5.1    The Client acknowledges and agrees that Efficio and/or its licensors own all intellectual property rights in eFlow and Efficio Data. Subject to clause 2.1 and 5.2, this Agreement does not grant the Client any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other intellectual property or proprietary rights or licences in respect of eFlow or Efficio Data.

5.2    Subject to the payment of Efficio’s charges and expenses in connection with the provision of eFIow, the Client shall have an irrevocable, perpetual, non-exclusive, royalty-free right and licence to use Efficio Data that is accessible via eFIow.

5.3    If Efficio makes any adaptations to eFIow to accommodate the objectives of or any request by the Client and/or any deliverables from Efficio are adaptations or additional modules to or derivative works of eFIow, Efficio shall own all rights in the same. Efficio shall grant the Client a licence to use the same in accordance with this clause 5.

6    CONFIDENTIAL INFORMATION

6.1    Each party agrees that it may be provided or granted access to the other party’s data, third party data supplied by the other party, systems and other materials of the other party that may be considered to be confidential or proprietary  (“Confidential Information”) and such use is only permitted in the exercise of its rights and performance of its obligations under this Agreement. Each party shall not disclose the other party’s Confidential Information.

6.2    Notwithstanding clause 6.1, each party may disclose the other party’s Confidential Information to its employees, officers, advisers, agents or representatives who need to know the other party’s Confidential Information in order to exercise the disclosing party’s rights or perform its obligations under this Agreement provided that the disclosing party shall ensure that each of its employees, officers, advisers, agents or representatives to whom Confidential Information is disclosed is aware of its confidential nature and complies with this clause 6 as if it were a party this Agreement.

6.3    The Client Data shall, at all times, be and remain the exclusive property of the Client. Except as provided in this Agreement, Efficio shall not have or acquire any title or interest in or to any Client Data.

6.4    Notwithstanding clause 6.1 and in addition to clause 6.2, Efficio may use the information and materials of the Client that may be considered to be confidential or proprietary ("Client’s Confidential Information") for any proper purpose related to the operation of eFIow. Efficio may 

6.4.1     disclose and make available the Client Confidential Information and Client Data on a confidential and restricted basis in line with Efficio’s internal rules and procedures to (i) its employees, officers, representatives as well as its group entities (including their employees, officers and representatives) e.g. through Efficio’s internal data sharing platforms; and (ii) relevant sub-contractors or sub-processors;

6.4.2    retain and reuse Client’s Confidential Information and Clients Data on a confidential and restricted basis in line with Efficio’s internal rules and procedures to develop and enhance Efficio’s services, including but not limited to (i) benchmarking, (ii) conducting industry and market analyses; and (iii) developing new systems and materials (e.g. sourcing templates, strategies, and frameworks, tools, modules etc.) ((i), (ii) and (iii) together “Efficio Tools”). Any Efficio Tools shall at all times be and remain the exclusive property of Efficio.

6.4.3    anonymise the Client’s Confidential Information and Client Data , and/or aggregate it, and/or combine it with other information in a way that it is no longer attributablessociated towith the Client and therefore not Client’s Confidential Information/Client Data or Client Confidential Information anymore ("Anonymised Benchmarking Data") as well as retain and reuse that Anonymised DataBenchmarking Data for benchmarking purposes for the provision of chargeable Anonymised Data-enabled services and deliverables (through Efficio Tools or otherwise) to other clients or otherwise in the course of its business, which may include the provision of chargeable Benchmarking Data-enabled services to other clients.

6.5 Notwithstanding clause 6.1 and in addition to clause 6.2, Efficio may further share the Client’s Confidential Information with other group entities of Efficio or subcontractors, provided that they are subject to confidentiality obligations.

7    CHARGES AND PAYMENT

7.1    The charges payable for eFIow and the timing of payments shall be set out in the Proposal. If no timings are specified, Efficio shall invoice the Client annually in advance for access to and use of eFIow and the Client shall pay each invoice submitted to it by Efficio, in full and in cleared funds, within 15 days of receipt.

7.2    All charges are exclusive of applicable sales tax which shall be added to Efficio's invoice(s) at the appropriate rate and paid by the Client.

7.3    Without prejudice to any other right or remedy that Efficio may have, if the Client fails to pay Efficio on the due date, Efficio may:

7.3.1    charge interest on such sum from the due date for payment at the annual rate of 4% above the base rate of the Bank of England from time to time, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment or, if higher, Efficio may claim interest under the Late Payment of Commercial Debts (Interest) Acts 1998; and

7.3.2    suspend access to and use of eFIow until payment has been made in full.

7.4    Efficio reserves the right to increase the charges payable for eFlow on 1 January every calendar year ("Adjustment Date"), to have effect from the day following the Adjustment Date for the respective calendar year by an amount equal to the percentage of the latest Retail Price Index Value available for the preceding 12-month period ("RPI Value") published by the Office of National Statistics at the Adjustment Date (“Inflation Adjustment”). For the avoidance of doubt: (a) the charges set out in the Proposal are subject to the first Inflation Adjustment, the adjusted charges based on the first Inflation Adjustment are subject to the second Inflation Adjustment and so on; (b) if a relevant RPI Value would ever be negative, Efficio is entitled to continue charging (i) the charges set out in the Proposal or (ii) a higher amount based on a previous Inflation Adjustment, as applicable. Efficio will issue a respective adjustment notice as soon as reasonably practicable and in advance of the next invoice charging the adjusted amount and the Proposal shall be deemed to have been amended accordingly.

8    LIMITATION OF LIABILITY

8.1    This clause 8 sets out the entire financial liability of Efficio (including any liability for the acts or omissions of its employees, agents and sub-contractors) arising out of or in connection with this Agreement including without limitation in respect of: (a) any breach of this Agreement; (b) any use made by the Client of eFIow, Efficio Data or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

8.2    Nothing in this clause limits or excludes the liability of Efficio: (a) for death or personal injury resulting from negligence; or (b) for fraud or fraudulent misrepresentation by Efficio; or (c) any other liability that cannot be excluded or limited by English law.

8.3    Subject to clauses 8.2 and 9, Efficio shall not be liable, whether in tort (including fraud, negligence or breach of statutory duty), contract, misrepresentation or otherwise for: (a) loss of profit; (b) loss of business; (c) depletion of goodwill and/or similar losses; (d) loss of anticipated savings; (e) loss of use or interruption of business; (f) loss or corruption of data or information; or (g) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

8.4    Efficio’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement, including insofar as it relates to the obligations set out in clause 11 or Applicable Data Protection Laws, shall be limited to the charges paid (excluding payments for taxes and expenses by the Client to Efficio for eFIow) during the 12 months immediately preceding the date on which the claim arose.

9    INDEMNITY

9.1    Efficio shall indemnify the Client against all liabilities, costs, expenses, damages and losses and reasonable professional costs and expenses) suffered or incurred by the Client arising out of or in connection with any claim that the Client’s access to or use of eFIow infringes a third party's intellectual property rights. Efficio’s liability under this indemnity is conditional on the Client discharging the following obligations. If any third party makes a claim, or notifies an intention to make a claim, against the Client that may reasonably be considered likely to give rise to a liability under this indemnity (“Claim”), the Client shall: 

9.1.1    give prompt written notice of the Claim to Efficio, specifying the nature of the Claim in reasonable detail; 

9.1.2    not make any admission or otherwise attempt to compromise or settle the Claim without the prior written consent of Efficio; 

9.1.3    give Efficio and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Client to enable Efficio and its professional advisers to examine them, take copies (at Efficio's expense) and assess the Claim; and 

9.1.4    be deemed to have given Efficio sole authority to avoid, dispute, compromise or defend the Claim.

10    DURATION, SUSPENSION AND TERMINATION

10.1    This Agreement shall be effective for the minimum period specified in the Proposal and shall be renewable and terminable as specified in the Proposal. 

10.2    Subject to anything to the contrary in the Proposal, either party may terminate this Agreement by giving not less than 30 days written notice to the other.

10.3    Subject to anything to the contrary in the Proposal, either party may terminate this Agreement immediately by giving written notice to the other if:

10.3.1    the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment;

10.3.2    the other party commits a material breach of any of the terms of this Agreement and (if such breach is remediable) fails to remedy that breach within 15 days of that party being notified in writing of the breach; 

10.3.3    the other party is unable to pay its debts as the full due or takes any action (or any action is taken against it) as a prelude to administration or insolvency; 

10.3.4    an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party or an order is made for the appointment of an administrator to manage the affairs, business and property of the other party; 

10.3.5    a receiver is appointed of any of the other party’s assets or undertaking; 

10.3.6    the other party takes or suffers any similar or another action in any jurisdiction in consequence of debt; or

10.3.7    the other party ceases, or threatens to cease, to trade. 

10.4    Instead of terminating this Agreement, Efficio may suspend the Client's access to eFIow in the circumstances of clause 10.3.

10.5    Upon termination of this Agreement for any reason:

10.5.1    the Client shall pay all expenditure incurred by Efficio or unavoidable at time of termination;

10.5.2    all sums payable to Efficio under this Agreement shall become due immediately and the Client shall immediately pay to Efficio all such sums; this paragraph 10.5.2 is without prejudice to any right to claim for interest under the law, or any such right under this Agreement;

10.5.3    each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;

10.5.4    Efficio may destroy or otherwise dispose of any of the Client Data in its possession unless Efficio receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. Efficio shall use reasonable commercial endeavours to deliver the backup to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by Efficio in returning or disposing of Client Data; and

10.5.5    the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
10.6    For the avoidance of doubt destruction or disposal under clause 10.5.4 shall not affect the Benchmarking Data.

11    DATA PROTECTION

11.1    In this clause 11: 
(a) “Applicable Data Protection Laws" means (i) to the extent the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (United Kingdom 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 as modified by Schedule 1 to the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (“2019 Regulations”) ("UK GDPR") applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data (including but not limited to The Privacy and Electronic Communications (EC Directive) Regulations 2003), as amended from time to time; (ii) to the extent the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data ("EU GDPR") applies, the law of the European Union or any member of the European Union to which Efficio is subject, which relates to the protection of personal data, as amended from time to time;  
(b) "Applicable Laws" means (i) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom; (ii) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Efficio is subject;
(c) “data controller”, “data processor”, "data subject", “personal data”, "personal data breach" and "processing" have the meanings as defined in the Applicable Data Protection Laws; and
(d) "Client Personal Data" means Client Data containing personal data.

11.2    Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 11 is in addition to, and does not relieve, remove or replace, a party's obligations under the Applicable Data Protection Laws.

11.3    The parties acknowledge and agree that the primary purpose of the access to and use of eFIow is not the processing of personal data and the primary content of the Client Data is not personal data. To the extent Client Personal Data is concerned, the Client will be considered the data controller of the same with rights to determine the purposes for which the Client Personal Data during the provision of access and use of eFlow and Efficio the data processor. Efficio shall process the Client Personal Data on behalf of the Client in accordance with this Agreement. Nothing in this Agreement will restrict or limit in any way the Client’s rights or obligations as owner and/or data controller of the Client Personal Data for such purposes.     

11.4    By entering into this Agreement, the Client consents to (and shall procure all required consents in respect of) all actions taken by Efficio in connection with the processing of Client Personal Data.

11.5    Without prejudice to the generality of clause 11.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to Efficio for the duration and purposes of this Agreement.

11.6    Without prejudice to the generality of clause 11.2, Efficio shall, in relation to any Client Personal Data processed in connection with and for the purpose of the performance of Efficio's obligations under this Agreement:

11.6.1    process the Client Personal Data only on the written instructions of the Client unless Efficio is required by Applicable Laws to otherwise process the Client Personal Data; where Efficio is relying on Applicable Laws as the basis for processing such personal data, Efficio shall notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Efficio from so notifying the Client on important grounds of public interest. Efficio shall inform the Client if, in the opinion of Efficio, the instructions of the Client infringe Applicable Data Protection Laws;

11.6.2    ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, which the Client has reviewed and confirms are 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;

11.6.3    ensure that all personnel who have access to and/or process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;

11.6.4    assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to Efficio), and at Client's cost and written request, in responding to any request from a data subject and in ensuring compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

11.6.5    notify the Client without undue delay on becoming aware of a personal data breach involving Client Personal Data;

11.6.6    at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the Agreement unless Efficio is required by Applicable Laws to store that Client Personal Data; for the purposes of this clause 11.6.6 Client Personal Data shall be considered deleted where it is put beyond further use by the Efficio; and

11.6.7    maintain complete and accurate records to demonstrate its compliance with this clause 11 and allow for reasonable audits by the Client or the Client's designated auditor, for this purpose, on reasonable written notice.

11.7    The Client hereby provides its prior, general authorisation for Efficio to: 

11.7.1    appoint third party processors to process Client Personal Data under this Agreement for the purposes of assisting with the provision of eFIow, provided that (a) Efficio shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws and are consistent with the obligations imposed on Efficio in this clause; (b) Efficio remains responsible for the acts and omission of any such processor as if they were acts and omissions of Efficio; (c) informs the Client of any intended changes concerning the addition or replacement of such processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to Efficio's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Laws, the Client shall indemnify Efficio for any losses, damages, costs (including legal fees) and expenses suffered by Efficio in accommodating the objection; and

11.7.2    transfer any Client Personal Data as required for purposes of this Agreement outside of the UK to a country without adequate protection for personal data, provided that the Efficio shall ensure that all such transfers are affected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of Efficio, including any request to enter into standard contractual clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer).

11.8    Either party may, at any time on not less than 30 days’ notice, revise this clause by replacing it (in whole or part) with any applicable standard clauses approved by the EU Commission or the UK Information Commissioner's Office or forming part of an applicable certification scheme or code of conduct, which shall apply when replaced by attachment to this Agreement, but only in respect of such matters which are within the scope of such amended terms.

12    GENERAL

2.1    Force Majeure. Efficio shall have no liability to the Client under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including but without limitation strikes, lock-outs or other industrial disputes, failure of a utility service or transport 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.

12.2    Variation. This Agreement may only be varied with the written consent of Efficio. Efficio reserves the right in its sole discretion to change the terms of this Agreement from time to time. Where such changes do not materially or adversely affect the performance of eFIow, such changes shall take effect immediately by Efficio making the new terms available online within eFlow when accessing the platform. Otherwise, Efficio shall use reasonable endeavours to provide the Client with a 30 days' written notice of such changes. If, during this period, the Client gives written notice to Efficio objecting to the changes, the parties shall meet to discuss the changes in good faith. Otherwise, the Client shall be deemed to have accepted such changes.

12.3    Waiver. A waiver of any right of this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

12.4    Severance. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions will remain in force. If any invalid, enforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal. The parties agree, in the circumstances referred to in the first sentence of this clause and if the second sentence of this clause does not apply, to attempt to substitute for any invalid, unenforceable or illegal provision a valid, enforceable and legal provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.

12.5    Status of pre-contractual statements. Each of the parties acknowledges in entering into this Agreement that it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
12.6    Assignment. The Client shall not, without the prior written consent of Efficio, assign, transfer, charge, sub-contract

or deal in any other manner with all or any of its rights (including the licence to access and use eFIow and the licence to use Efficio Data) or obligations under this Agreement, except as expressly provided for in this Agreement. Efficio may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

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

12.8    Governing Law & Jurisdiction. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales. The Parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).