Terms & Conditions.

Definitions and Interpretation

1.1

Unless the context requires otherwise, in these Terms and Conditions and in a Subscription:

“Annual Services”	means the provision by Autto of the Services specified in a Subscription for a fixed period of twelve (12) months.
“Autto”	A trading name of Tangible Digital, Inc, a company registered in Delaware, USA with its registered office at 1104 NW 15th Avenue, Suite 350, Portland, Oregon 97209, USA.
“Autto Platform”	means Autto’s proprietary web platform which can be accessed at https://www.autto.io/.
“Autto Pricing and Payments Policy”	means the then-current version of Autto’s pricing and payments policy in respect of Autto Services, which may be accessed at https://autto.io/pricing.
Autto Services	means the workflow automation software tools with the functionality, features and other benefits, and subject to the workflow and monthly actions limits, associated with a “Free”, “Basic”, “Business” or “Corporate” package, as further described on the Autto Platform and that are made available by Autto to the Customer by means of Autto’s proprietary web applications which are accessed on a hosted, software-as-a-service (SaaS) basis pursuant to a Contract.
“Autto Support Policy”	means the then-current version of Autto’s support policy for the provision of Support Services, which may be accessed at https://autto.io/support.
“Business Days”	Mondays to Fridays, excluding English Bank and public holidays.
Charges	means: (i) in the case of Annual Services, the annual subscription charges or; (ii) in the case of Monthly Services, the monthly subscription charges, as specified in the Autto Pricing and Payments Policy.
“Contract”	means a contract between Autto and the Customer made up of a Subscription, these Terms and Conditions and any documents expressly referred to in either of them, and any amendments to that contract from time to time.
“Customer”	means the person or entity identified as such in a Subscription.
“Customer Data”	means any data provided by the Customer to Autto or created by the Customer under or in connection with a Contract.
“Customer Personal Data”	means any Personal Data provided by the Customer to Autto under or in connection with a Contract and in respect of which the Customer is a Data Controller.
“Confidential Information”	means any information disclosed or made available (whether in writing, verbally or otherwise) by either party (“Discloser”) to the other party (“Recipient”) including: (a) any information that is marked, or at the time of disclosure is otherwise designated, as being confidential; (b) any information that would be regarded as confidential by a reasonable business person in or relating to the business, affairs, operations, processes, products, clients, customers inventions, know-how, trade secrets, designs or software of the Discloser (including, in the case of Autto, the Autto Services); and (c) any information or analysis derived from any of the information referred to in (a) or (b).
“Data Controller”	has the meaning given to it in the Data Protection Legislation
“Data Processor”	has the meaning given to it in the Data Protection Legislation
“Data Protection Legislation”	means: (i) the EU Data Protection Directive (Directive 95/46/EC), the Data Protection Act 1998, the Data Protection Act 2018 and Electronic Communications (EC Directive) Regulations 2003; (ii) the EU General Data Protection Regulation (Regulation (EU) 2016/679); and (iii) any other data protection laws and regulations, orders and any codes of practice, guidelines and recommendations issued by the Information Commissioner’s Office or any replacement or equivalent body, as amended and in force from time to time.
“Force Majeure Event”	an event, or a series of related events, that is outside the reasonable control of the party affected, including: failures of the internet or any public telecommunications network; hacker attacks; denial of service attacks; virus or other malicious software attacks or infections; power failures; industrial disputes affecting any third party; changes to the law; disasters, explosions, fires, floods, riots, terrorist attacks and wars; failure of computer systems or infrastructure owned or managed by a party’s subcontractor or supplier.
“Intellectual Property Rights”	patents, rights in inventions, know how, show how and trade secrets, copyright and related rights, moral rights, registered designs, design rights, database rights, semiconductor topography rights, trade marks and service marks, trade names, business names, brand names, get up, logos, domain names and URLs, rights in unfair competition, goodwill and rights to sue for passing off and any other intellectual property rights (in each case, whether or not registered, and including all applications to register and rights to apply to register any of them and all rights to sue for any past or present infringement of them) and all rights or forms of protection having equivalent or similar effect in any jurisdiction.
“Monthly Services”	means the provision by Autto of the Services specified in a Subscription on a monthly basis.
“Personal Data”	has the meaning given to it in the Data Protection Legislation.
“Processing”	has the meaning given to it in the Data Protection Legislation.
“Services”	means: the Autto Services; and the Support Services, or, as required by the context, either of them.
“Specifications”	means the descriptions of the Autto Services on the Autto Platform.
“Subscription”	means an order for the supply of Services that is submitted by the Customer via the Autto Platform and is accepted in writing by Autto.
“Support Services”	means the support and maintenance services that are available in relation to a “Free”, “Basic”, “Business” or “Integrator” package, as further described on the Autto Support Policy.
“Term”	has the meaning given to it in clause 2.1.
“Workflows”	has the meaning given to it in clause 8.3.

1.2

In the Contract, a reference to a statute or statutory provision includes a reference to: (a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and (b) any subordinate legislation made under that statute or statutory provision. the exclusive jurisdiction of the courts of England.

1.3

The clause headings do not affect the interpretation of the Contract.

1.4

In the Contract, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

1.5

In case of a conflict or inconsistency between these Terms and Conditions and any provision in a Subscription, the provision in the Subscription prevails.

Term

2.1

Subject to earlier termination in accordance with clause 14, the Contract will continue in force until cancelled by either party in accordance with the Autto Pricing and Payments Policy, such cancellation to be effective:(a) in the case of Annual Services, at the end of the then-current 12-month subscription
period; or
(b) in the case of Monthly Services, at the end of the then-current one-month subscription
period,
(the “Term”).

2.2

The parties agree that:
(a) the Annual Services will renew automatically for successive, 12-month subscription
periods; and
(b) the Monthly Services will renew automatically for successive, one-month subscription
periods.

Autto Services

3.1

Subject to the Customer complying with clauses 3.2 and 3.3, Autto grants the Customer a non-exclusive, non-transferable licence for it and its authorised users to access the Autto Platform during the Term for the sole purpose of accessing and using the Autto Services for its business purposes.

3.2

The Customer agrees that it will (and will procure that its authorised users will) throughout the
Term:
(a)          use the Autto Services in a professional manner and only for the purposes for which they
are made available;
(b)          use the Autto Services in accordance with all applicable laws; and
(c)           choose a strong password and keep all login credentials secure and confidential, and
otherwise ensure that no unauthorised person gains access to the Autto Services.

3.3

The Customer agrees that it will not (and will procure that its authorised users will not):
(a) sub-license, rent, lease, loan, or sell its right to access the Autto Services to any third party, or use the Autto Services for the benefit of any third party; or
(b) not use the Autto Services in any way that is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity; or
(c) send spam or other unwelcomed communications to others; or
(d) breach the intellectual property or other proprietary rights of Autto or any third party; or
(e) upload to the Autto Platform anything that contains software viruses, worms, or any other harmful code; or
(f) reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for the Autto Platform or any related technology, or any part thereof; or
(g) “scrape,” “crawl” or “spider” the Autto Platform, whether by manual means or using automated software, devices, scripts robots; or
(h) interfere with the operation of, or place an unreasonable load on, the Autto Platform, including by way of spam, denial of service attacks or viruses, or otherwise use the Autto Platform in any way that causes, or may cause, damage to it,
provided that (for the avoidance of doubt) nothing in this clause shall prevent or restrict the Customer from creating, using, copying, selling or otherwise exploiting Workflows.

3.4

If the Customer breaches of any of the conditions or restrictions set out in clauses 3.2 or 3.3, then Autto may with immediate effect and without any obligation to provide notice:
(a) suspend the Customer’s access to the Autto Platform and use of the Autto Services; and/or
(b) terminate the Contract.

3.4

Support Services and Service Availability

4.1

Autto shall provide the Customer with the Support Services in accordance with the Autto Support
Policy.

4.2

Autto shall use all reasonable commercial endeavours to ensure that the availability of the Autto
Services during any calendar month during the Term (“Service Availability”) exceeds 99.9%.

4.3

For the purposes of calculating Service Availability under clause 4.2, any periods of non-availability of the Autto Services caused by:

(a)          scheduled or planned maintenance carried out by Autto; or
(b)          non-availability of the internet, or a failure of the Customer’s equipment, or a power outage at the Customer’s premises; or
(c)           any act or omission of the Customer, or any person acting on behalf of the Customer, which prevents or delays the availability of the Autto Services; or
(d)          a Force Majeure Event.
shall be disregarded.

4.4

If the Customer has purchased an “Business” or “Corporate” package of Annual Services and
Service Availability is less than 99.9% during three consecutive calendar months during the Term,
then the Customer may treat such non-availability as a material breach which is not capable of
remedy for the purposes of clause 14.1.

Customer Data

5.1

The Customer hereby grants to Autto the following non-exclusive licences:
(a) to collect, copy, store, distribute, export, edit and translate the Customer Data to the
extent reasonably required for the performance of Autto’s obligations and the exercise of
Autto’s rights under these Terms and Conditions, together with the right to sub-license
these rights to its hosting, connectivity and telecommunications service providers to the
extent reasonably required for the performance of Autto’s obligations and the exercise of Autto’s rights under the Contract; and
(b) to collect, store, aggregate, analyse and create copies of the Customer Data for the
purposes of optimising and improving the Services, and creating new or derivative
products and services.

5.2

The Customer warrants to Autto that the use of the Customer Data by Autto in accordance with
the Contract will not:
(a)           breach the provisions of any law, statute or regulation;
(b)          infringe the Intellectual Property Rights or other legal rights of any person; or
(c)           give rise to any cause of action against Autto,
in each case in any jurisdiction and under any applicable law.

Confidentiality

6.1

The Recipient shall:
(a)           keep the Confidential Information of the Discloser strictly confidential;
(b)          not disclose the Discloser’s Confidential Information to any person without the Discloser’s
prior written consent, and then only under conditions of confidentiality no less onerous
than those contained in these Terms and Conditions; and
(c)           use the same degree of care to protect the confidentiality of the Discloser’s Confidential
Information as the Recipient uses to protect its own confidential information of a similar
nature, being at least a reasonable degree of care.

6.2

Notwithstanding clause 6.1, the Recipient may disclose the Discloser’s Confidential Information
to its officers, employees, professional advisers, insurers, agents and subcontractors who are
bound by a written agreement or professional obligation to protect the confidentiality of such
Confidential Information.

6.3

This clause 6 imposes no obligations upon the Recipient with respect to the Discloser’s
Confidential Information that:
(a)           is known to the Recipient before disclosure under or in connection with the Contract, and
is not subject to any other obligation of confidentiality;
(b)          is or becomes publicly known through no act or default of the Recipient; or
(c)           is obtained by the Recipient from a third party in circumstances where the Recipient has
no reason to believe that there has been a breach of an obligation of confidentiality.

6.4

The restrictions in this clause 6 do not apply to the extent that any Confidential Information is
required to be disclosed by any law or regulation, by any judicial or governmental order or
request, or pursuant to disclosure requirements relating to the listing of the stock of the Recipient
on any recognised stock exchange.

6.5

The provisions of this clause 6 shall continue in force for a period of five (5) years following the
expiry or earlier termination of the Contract, at the end of which period they will cease to have
effect.

Data Protection

7.1

The parties agree that, in respect of any Customer Personal Data that is provided by the Customer
to Autto then, for the purposes of the Data Protection Legislation, the Customer is the Data
Controller and Autto is the Data Processor of such Customer Personal Data.

7.2

(a) process the Customer Personal Data only to the extent, and in such a manner, as is
necessary for the purposes of the Contract and in accordance with the Customer’s lawful
written instructions from time to time;
(b) ensure the reliability of all its personnel who have access to Customer Personal Data and,
in particular, ensure that any person authorised to process Customer Personal Data in
connection with the Contract is subject to a duty of confidentiality;
(c) provide the Customer, at the Customer’s own expense, with reasonable co-operation and
assistance in relation to the Customer’s obligations and rights under Data Protection
Legislation;
(d) implement and maintain technical and organisational measures against the unauthorised
or unlawful processing to, and the accidental loss or destruction of, or damage to,
Customer Personal Data;
(e) promptly notify the Customer, and provide such co-operation, assistance and information
as the Customer may reasonably require, if Autto:
(i) receives any complaint, notice or communication which relates to the processing
of the Customer Personal Data under the Contract or to either party’s compliance
with Data Protection Legislation; or
(ii) becomes aware of any personal data breach unless it is unlikely to result in a risk
to a data subject;
(f) keep a written record of all processing of Customer Personal Data carried out in the
course of the Autto Services and provide the Customer or its third-party representatives
a copy of Autto’s most recent audit results to demonstrate Autto’s compliance with its
obligations as a processor under the Contract;
(g) destroy or, if required by the Customer and at the Customer’s cost, return all Customer
Personal Data that it processes acting on behalf of the Customer and has in its possession
and delete existing copies of such data unless applicable law requires storage of the
Customer Personal Data;
(h) not transfer or otherwise process the Customer Personal Data outside the UK or, the EEA
without obtaining the Customer’s prior written consent.

7.3

The Customer warrants that it will comply with its obligations under the Data Protection
Legislation.

Intellectual Property Rights

8.1

Nothing in the Contract shall operate to assign or otherwise transfer any Intellectual Property Rights from Autto to the Customer, whether created prior to or during the Term.

8.2

All Intellectual Property Rights in the Autto Platform and the Autto Services, together with any
improvements, enhancements or other modifications to either of them, whether or not created
jointly with the Customer, (“Improvements”) shall vest and remain vested in Autto.

8.3

Subject to clause 8.2, all Intellectual Property Rights in in all workflows and other materials
created by Customer using the Autto Services (“Workflows”) shall vest or remain vested in the
Customer.

8.4

At Autto’s request and expense the Customer will perform (or procure the performance of) all
further acts and things, and execute and deliver (or procure the execution or delivery of) all
further documents which Autto reasonably considers necessary to vest ownership of any
Intellectual Property Rights in any Improvements in Autto, or otherwise to give effect to this
clause 8.

8.5

At Customer’s request and expense Autto will perform (or procure the performance of) all further acts and things, and execute and deliver (or procure the execution or delivery of) all further documents which the Customer reasonably considers necessary to vest ownership of any Intellectual Property Rights in any Workflows in this Customer, or otherwise to give effect to this clause 8.

Charges

9.1

The Customer agrees that Autto may use the payment method selected by the Customer to process payment of the Charges:
(a) in the case of Annual Services, annually in advance; and
(b) in the case of Monthly Services, monthly in advance.

9.2

The Charges are exclusive of UK value added tax (VAT) or any other applicable sales tax, which will be added to the Charges and paid in accordance with clause 9.1.

9.3

Autto may increase the Charges by giving to the Customer at least thirty (30) days’ prior written notice, provided that, in the case of Annual Services, any increases to the Charges shall only be effective following expiry of the then-current 12-month subscription period.

9.4

The Customer acknowledges and agrees that if Autto is unable to collect payment of the Charges using the payment method selected by the Customer, Autto may, without prejudice to its other rights (whether under the Contract or otherwise), suspend the provision of the Autto Services with immediate effect and without any obligation to give prior notice of such suspension to the Customer or to refund the Customer for any Charges relating to the period of suspension.

10.

Warranties

10.1

Each party warrants to other party that:
(a) it has the legal right and authority to enter into the Contract and to perform its obligations under the Contract; and
(b) it will comply with all applicable legal and regulatory requirements applying to the exercise of its rights and the fulfilment of its obligations under the Contract.

10.2

Autto warrants to the Customer that:
(a)          it shall provide the Services with a reasonable degree of skill and care;
(b)          the Autto Services shall in all material respects comply with the Specification so far as is reasonably practicable;
(c)           it has taken and shall continue to take all commercially reasonable steps to ensure that the
Autto Services will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
(d)          the Autto Services will incorporate security features reflecting the requirements of good
industry practice.

10.3

All of the parties’ warranties and representations in respect of the subject matter of the Contract are expressly set out in the Contract. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Contract will be implied into the Contract or any related contract.

11.

Acknowledgements and warranty limitations

11.1

The Customer acknowledges that, despite all reasonable commercial endeavours, complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of the Contract, Autto gives no warranty or representation that the Autto Services will be wholly free from defects, errors and bugs.

11.2

The Customer acknowledges that, despite all reasonable commercial endeavours, complex software is never entirely free from security vulnerabilities; and subject to the other provisions of the Contract, Autto gives no warranty or representation that the Autto Services will be entirely secure.

11.3

Except to the extent expressly provided otherwise in the Contract, Autto does not warrant or represent that the Autto Services or the use of the Autto Services by the Customer will be suitable for the Customer’s purposes, or will provide the Customer with any return on investment, cost saving or other specific result or outcome.

12.

Limitations and exclusions of liability

12.1

Nothing in the Contract will limit or exclude:
(a) any liability for fraud or fraudulent misrepresentation; or
(b) any liability in any way that is not permitted under applicable law.

12.2

The limitations and exclusions of liability set out in this clause 12 and elsewhere in the Contract:
(a) are subject to clause 12.1; and
(b) govern all liabilities arising under the Contract or relating to the subject matter of the Contract, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Contract.

12.3

Autto shall not be liable to the Customer in respect of:
(a)          any losses arising out of a Force Majeure Event; or
(b)          any loss of profits or anticipated savings; or
(c)           any loss of revenue or income; or
(d)          any loss of use or production; or
(e)          any loss of business, contracts or opportunities; or
(f)           any loss or corruption of any data, database or software,
whether or not such losses or loss would also fall within clause 12.4.

12.4

Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

12.5

Subject to clauses 12.1 to 12.4, the liability of each party to the other party under the Contract in respect of any event or series of related events shall not exceed:
(a) if the Customer subscribes to the “Free” package of Auto Services, £1,000; or
(b) in all other cases, the higher of (i) the total amount paid and payable by the Customer to Autto under the Contract in the 12-month period preceding the commencement of the event or events or (ii) £50,000.

13.

Force Majeure Event

13.1

If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Contract (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

13.2

A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Contract, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.

13.3

A party whose performance of its obligations under the Contract is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

14.

Termination

14.1

Either party may terminate the Contract immediately by giving written notice of termination to the other party if the other party commits any material breach of the Contract which, in the case of a breach which is capable of remedy, is not remedied within thirty (30) days of the date on which the other party is given written notice requiring the breach to be remedied.

14.2

Either party may terminate the Contract immediately by giving written notice of termination to the other party if:
(a)           the other party is dissolved, ceases to conduct all (or substantially all) of its business, is or becomes unable to pay its debts as they fall due, is or becomes insolvent or is declared insolvent, or convenes a meeting or makes or proposes to make any arrangement or composition with its creditors; or
(b)          an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any material part of the assets of the other party; or
(c)           an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Contract).

14.3

Autto may terminate the Contract at any time by giving thirty (30) days’ notice of termination to the Customer.

15.

Effects of termination

15.1

Upon the termination of the Contract, all of the provisions of the Contract shall cease to have effect, save that the following provisions of the Contract shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): clauses 1, 5, 6, 7, 8, 9, 12, 15, 17, 20, 21, 22, 24 and 25.

15.2

The termination of the Contract shall not affect the accrued rights of either party.

15.3

On termination of the Contract for any reason the Customer must immediately pay to Autto any Charges in respect of Services provided to the Customer before the termination of the Contract.

15.4

The Customer agrees that it is the Customer’s responsibility to retrieve a copy of the Customer Data within thirty (30) days of the date on which termination of the Contract is effective, following which date Autto is entitled to delete the Customer Data without notice.

16.

Marketing and Publicity

16.1

The Customer agrees that Autto may refer to the Customer as being a user of the Autto Services in its marketing materials, press releases, or on its website.

17.

Notices and Consents

17.1

Any notice or consent from one party to the other party under the Contract must be given by email using, in the case of Autto, support@autto.io or, in the case of the Customer, the email address set out in the Subscription.

18.

Subcontracting

18.1

Autto may subcontract any of its obligations under the Contract, provided that Autto shall remain responsible to the Customer for the performance of any subcontracted obligations.

19.

Assignment

19.1

The Customer must not assign, transfer or otherwise deal with its contractual rights and/or obligations under the Contract without the prior written consent of Autto, such consent not to be unreasonably withheld or delayed.

20.

No waivers

20.1

No breach of any provision of the Contract will be waived except with the express written consent of the party not in breach.

20.2

No waiver of any breach of any provision of the Contract shall be construed as a further or continuing waiver of any breach of that provision or any other provision of the Contract.

21.

Severability

21.1

If a provision of the Contract is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

21.2

If any unlawful and/or unenforceable provision of the Contract would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

22.

Third party rights

22.1

The Contract is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.

23.

Variation

23.1

The Contract may not be varied except in accordance with this clause 23.

23.2

Subject to clause 23.3, the Contract may be varied by means of a written document signed, including by electronic signature, by or on behalf of each party.

23.3

Autto may from time to time make changes to the Specification, provided that any such change shall not adversely affect the core functionality of the Autto Services in any material respect.

24.

Entire agreement

24.1

The Contract shall constitute the entire agreement between the parties in relation to its subject matter, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

24.2

Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Contract.

24.3

The provisions of this clause 24 are subject to clause 12.1.

25.

Law and jurisdiction

25.1

The Contract and all disputes or claims arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.

25.2

Any disputes relating to the Contract or its subject matter or formation (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the courts of England.

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