SANNO Ltd - Master Service Agreement (MSA)

Terms of Use

‍THE PARTIES HAVE AGREED THE CORE COMMERCIAL TERMS OF AN ORDER FOR ACCESS TO THE SANNO APP AND PLATFORM ("platform") AND CERTAIN ADDITIONAL SERVICES. THE PLATFORM AND THE ADDITIONAL SERVICES COMPRISE THE “SERVICES”. THESE CORE TERMS ARE SET OUT IN AN ORDER FORM (“Order Form”). THE ORDER FORM HAS A LINK THROUGH TO THESE TERMS OF USE.

THE AGREEMENT MADE BETWEEN THE PARTIES COMPRISES THE ORDER FORM AND THESE TERMS OF USE ACCEPTANCE OF THE ORDER FORM CONSTITUTES ACCEPTANCE OF THESE TERMS OF USE. THE PARTIES AGREE TO THE FOLLOWING TERMS AND CONDITIONS:

This Master Subscription Agreement, together with the Order Form (collectively “Agreement”) is entered into by and between SANNO Ltd. (Registration No: 12785426) having its principal place of business at 9 Shottery Brook Office Park, Stratford-Upon-Avon, Warwickshire, UK ("SANNO") and the customer as specified in the Order Form (“Customer”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Terms & conditions

1.1 Confidentiality

Both SANNO and the Customer are in complete understanding that the transfer and sharing of confidential information regarding the services defined in the Order Form shall occur. Both parties are in agreement that during the term of this agreement as well a 5-year period after the conclusion of this agreement both parties will adhere to the following:
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- No information deemed confidential shall be shared without prior authorization and written consent from both parties.
- No information regarding the scope shall be shared or published to third parties without all participating parties' knowledge and prior consent. All precautions deemed necessary can and will be taken to protect confidential information at all times.

2. Service

2.1 Provision of Services
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SANNO hereby grants Customer a non-exclusive, non-transferable, right to use the Services, solely for Customer’s own business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to Customer are reserved by SANNO and its licensors. SANNO shall make the Services available to Customer and its users pursuant to this Agreement and all Order Forms during the Contract Duration. Customer agrees that its purchase of services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by SANNO with respect to future functionality or features.
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2.2 Platform. The Service is hosted by SANNO. The platform processes specific data only as agreed by the parties.

3. Responsibilities of the parties

3.1  SANNO Responsibilities.

3.1.1 SANNO shall:
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(i) provide the Services on and subject to the terms of this Agreement; (ii) in addition to its confidentiality obligations hereunder, not use, modify or disclose to anyone other than the Customer or any User any Customer Data provided by the Customer or any User;
(iii) maintain the security and integrity of the Services and the Customer Data; (iv) provide Support in accordance with the service level provisions set out in this MSA; (v) use commercially reasonable endeavours to make the Service available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which SANNO shall give at least one day prior written notice and not to exceed one hour at a time); or(b) any unavailability caused by circumstances beyond SANNO’s reasonable control that SANNO could not foresee at the time of this Agreement or reasonably overcome, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror or strikes (other than those involving SANNO employees), Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within SANNO’s possession or reasonable control;(vi) not use Customer Data for SANNO’s own or a third party’s benefit; (vii) ensure that any opt outs and other consumer choices are honoured with respect to the use of Customer Data; (viii) comply with all applicable local, state, federal and foreign laws in providing the Services, including without limitation all applicable data protection laws and regulations; and (ix) act strictly as a data processor for the Customer and in accordance with Customer’s guidelines and instructions with respect to the Customer Data.

3.2 Customer Responsibilities.

3.2.1 Customer is responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement. Customer shall:
(i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data and shall ensure that all instructions given by it to SANNO in respect of the Customer Data will be in compliance with applicable data protection legislation;
(ii) use commercially reasonable endeavours to prevent unauthorised access to, or use of, the Services, and notify SANNO promptly of any such unauthorised access or use; and
(iii) comply with all applicable local, state, federal and foreign laws in using the Services, including without limitation all applicable data protection laws and regulations.
(iv) be responsible for maintaining and sharing with SANNO a record of subject rights requests, the decisions made and any information that was exchanged for all end users.

3.2.2 Customer shall use the Services solely for its internal business purposes as contemplated by this Agreement and shall not:
(i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than to Users or as otherwise contemplated by this Agreement;
(ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
(iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights;
(iv) send or store Malicious Code;
(v) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (vi) attempt to gain unauthorised access to the Services or their related systems or networks,
(vii) modify or make derivative works based upon the Services or the Content.

4. Subscription Fees and Charges:

4.1 Payment obligations: Fees cannot be cancelled and all already paid amounts paid are non-refundable (save for circumstances under 10.). Except as otherwise specified herein or in an Order Form, all Fees are quoted and payable in USD, and any tailored request incurred will be billed in addition to the Fees.

SANNO reserves the right to modify its Fees at the start of any renewal period, upon at least 30 days prior notice to Customer, which notice may be provided by e-mail, unless otherwise stated in the Order Form. All pricing terms are confidential, and the Customer agrees not to disclose them to any third party.

4.2 In consideration of the Additional Services to be provided by SANNO, Customer shall pay to SANNO the Charges.

4.3 Invoicing & Payment. The Fees, tailored items (if any) and Charges for the Services will be invoiced in advance or otherwise in accordance with the relevant Order Form.  All Charges are due by no later than 14 days from the date of receipt of an undisputed invoice by the Customer. Customer is responsible for maintaining complete and accurate billing and contact information on the Services.

4.4 Overdue Payments. Any payment not received from Customer by the due date may accrue (except under reasonable and good faith dispute), at SANNO’s discretion and without further notice, interest on the overdue amount at the rate of 3% per annum above the Bank of England’s base rate from time to time, from the date such payment was due until the date paid.
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4.5 Suspension of Services. If Customer’s account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute) after SANNO has notified the Customer of an overdue payment, in addition to any of its other rights or remedies, SANNO reserves the right to suspend the Services provided to Customer, without liability to SANNO, until such amounts are paid in full.

4.6 Taxes. SANNO’s fees will be exclusive of value added tax which will be payable if applicable upon receipt of a valid value added tax invoice.

5. Propietary rights

‍5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, SANNO alone (and its licensors, where applicable) reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. This agreement is not a sale and does not convey to Customer any rights of ownership in or related to any element of  the Services, SANNO technology or the intellectual property rights owned by SANNO. The SANNO name, the SANNO logo and the product names associated with this service are trademarks of SANNO or third parties and no right or license or granted to use them.
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5.2 Customer Data. Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer Data is deemed Confidential Information under this Agreement. SANNO shall not access Customer’s User accounts, including Customer Data, except to respond to service or technical problems or at Customer’s request. More detail on how SANNO manages Customer Data and the ownership of and access to any data captured under this Agreement can be found in clause 12 of this Agreement, Customer Data Management and Ownership.
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5.3 Suggestions. SANNO shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the Service.

6.  Confidentiality

‍6.1 Definition of Confidential Information.
As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Services, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information (except for Customer Data) shall not include any information that:is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; oris received from a third party without breach of any obligation owed to the Disclosing Party.

6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.

6.3  Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care).
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6.4  Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
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6.5  Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

7. Warranties

7.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement.

7.2 SANNO represents and warrants that:
(i) it will provide the Services in a manner consistent with best general industry standards reasonably applicable to the provision thereof;
(ii) the functionality of the Services will not be materially decreased during the Contract Duration;
(iii) it owns or otherwise has sufficient rights in the Services to grant to Customer the rights to use the Services granted herein; and
(iv) the Services do not infringe any intellectual property rights or other rights of any third party.

7.3 Customer represents and warrants that the collection and processing of Customer Data by it and/or as contemplated by this Agreement complies in all respects with applicable data protection laws and regulations.

7.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
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8. Mutual indemnification
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8.1 Indemnification by SANNO. Subject to this Agreement, SANNO shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party alleging:
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(i) a breach by SANNO of its obligations under applicable data protection laws and regulations or its processing of Customer Data under this Agreement; or (ii) that the use of the Service as contemplated hereunder infringes the intellectual property rights of a third party; provided, that the Customer (a) promptly gives written notice of the Claim to SANNO; (b gives SANNO sole control of the defence and settlement of the Claim (provided that SANNO may not settle or defend any Claim without Customer’s consent unless it unconditionally releases Customer of all liability, such consent not to be unreasonably withheld, conditioned or delayed); and(c)         provides to SANNO, at SANNO’s cost, all reasonable assistance. Customer has the right to reasonably participate in any such defense with a counsel of its own choice at its own cost.

8.2 Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold SANNO harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against SANNO by a third party alleging:    

(i) a breach by Customer of its obligations under applicable data protection laws and regulations in respect of the Customer Data that it submits to SANNO for SANNO to process on behalf of the Customer:
(ii) that any content provided by the Customer or Customer Data, or Customer’s use of the Services in violation of this Agreement, infringes the intellectual property rights of a third party; provided, that SANNO (a promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defence and settlement of the Claim (provided that Customer may not settle or defend any Claim without SANNO’s consent unless it unconditionally releases SANNO of all liability, such consent not to be unreasonably withheld, conditioned or delayed); and(c)provides to Customer, at Customer’s cost, all reasonable assistance. SANNO has the right to reasonably participate in any such defence with a counsel of its own choice at its own cost.

9. Limitation of liability

‍9.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.

9.2 Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.3 Liability caused by incorrect Customer Data. SANNO shall not be liable for any losses occasioned by incorrect or inaccurate Customer Data where such is attributable to the Customer.

9.4 Estimations of savings. Any estimates given by SANNO of financial savings to be derived from the Services are agreed to be estimations only and SANNO shall not be liable to the Customer if any such estimate is not achieved by the Customer.

9.5 Liability not excluded. Nothing in this Agreement limits or excludes the liability of either party:
(i) for death or personal injury resulting from negligence; or
(ii) for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by SANNO.

9.6 THE LIMITATIONS OF LIABILITY DO NOT APPLY TO LOSS AND DAMAGE ARISING OUT OF BREACH OF SECTION 7, 9 OR SANNO’S BREACH OF THE DATA PROCESSING AGREEMENT EXECUTED BETWEEN THE PARTIES.

10. Term and Termination

10.1  Term of Agreement. This Agreement commences on the Effective Date and shall continue in force unless and until terminated in accordance its provisions (“Term”).

10.2 Contract Duration commence on the start date specified in the relevant Order Form and continue for the Contract Term specified therein. Subscriptions shall automatically renew for additional periods of one (1) year if the Customer expressly opts in writing to enter into a subsequent Contract Term, one at a time, unless SANNO gives the Customer notice of non-renewal at least 60 days prior to the end of the relevant Contract Term. The renewal charge will be equal to the then current number of total User licences multiplied by the licence fee in effect during the prior term, unless SANNO has given the Customer at least 30 days prior written notice of a fee increase, which shall be effective upon renewal or thereafter. In absence of an express opt in by the Customer, the Agreement shall terminate upon the end of the then-current Contract Term.

10.3 Termination for Cause. A party may terminate this Agreement for cause: upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors or any event analogous to the foregoing occurs in relation to that other party in any jurisdiction. Furthermore, either party may terminate this agreement without liability to the other if the other party ceases, or threatens to cease, to trade.  Any breach of the Customer’s payment obligations or unauthorised use of SANNO technology or the Service will be deemed a material breach of this Agreement.

SANNO, in its sole discretion, may terminate Customer password, account or use of the Services if Customer breach or otherwise fail to comply with this Agreement. In addition, SANNO may terminate a free or trial account at any time in its sole discretion. Customer agrees and acknowledges that SANNO has no obligation to retain the Customer Data, and may delete such Customer Data, if Customer has materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach. Upon any termination for cause by the Customer, SANNO shall refund Customer any prepaid fees covering the remainder of the subscription term after the date of termination.

10.4 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to SANNO prior to the effective date of termination.

11. General provisions

11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

11.2 No Third-Party Beneficiaries. Except as stated no person who is not a party to this Agreement is intended to benefit by its terms and no such person has any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

11.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery;
(ii) the second business day after mailing; delivery by email to the email address specified below (as such email may be updated by a Party to the other Party from time to time: Customer: as specified in the Order Form SANNO: hello@sanno.health
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Notices to SANNO shall be addressed to the attention of the Company's Director and CEO at the registered office. Notices to Customer shall be addressed to Customer’s Legal Department at the registered office.
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11.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

11.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

11.6 Statistics. The Customer grants SANNO the right to use anonymised campaign data to create statistics to be used by SANNOfor the purpose of internally improving its services. For the avoidance of doubt, neither the data nor the statistics shall be capable of identifying directly or indirectly Customer Data, the Customer or any of their clients.
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11.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
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11.8 Governing Law. This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of England and Wales and any dispute, controversy or claim arising out of this Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration in the English language in  London in accordance with the rules of the London Court of International Arbitration (“LCIA”) with one arbitrator to be agreed by the parties and failing agreement to be chosen by the LCIA.
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11.9 Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written. There are no warranties, covenants, conditions or other agreements, express or implied, collateral, statutory or otherwise, between the parties in connection with the subject matter of this Agreement except as specifically set out herein.

12. Customer's data management and ownership

12.1 The Parties agree that Customer is the data controller of all Customer Data and personal data and SANNO is acting only as a data processor for the Customer. The terms and conditions related to the processing of Customer Data and personal data of the Customer by SANNO are defined in the data protection agreement (“Data Protection Agreement”) entered into between the parties simultaneously with this agreement. The Data Protection Agreement shall form an integral part of this Agreement. In the event of any discrepancy between the terms of this agreement (including any Order Form) and the Data Protection Agreement, the Data Protection Agreement shall prevail.