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ACONEX Terms of Service Agreement for CONJECT Products

All CLIENTs of ACONEX's Service must review and accept this Terms of Service Agreement prior to using the Service

WHEREAS

(a) ACONEX supplies a range of on-line business applications (the “Software”) and implementation and support services (together the “Services”) for the management of projects (“Projects”). 

(b) CLIENT wishes to use (as defined in Clause 3) the Services for the storage, processing, retrieval and dissemination of information about Projects (“Information”) and provide access to the same, to its team of professional advisers, designers, agents, suppliers, customers, contractors, sub-contractors and other participants (“Participants”).

(c)  ACONEX wishes to provide the Services to CLIENT on the terms and conditions as set out in this Agreement and Services Order/s each of which forms part of this Agreement.

(d) CLIENT and ACONEX are hereafter individually referred to as a “Party” and jointly as the “Parties”  

The Parties hereby agree as follows 

1. AGREEMENT  

1.1 ACONEX agrees to provide the Services to CLIENT on the terms and conditions contained in the Services Order and these terms and conditions (together “this Agreement”). In the event of any conflict between any of the provisions in these terms and conditions and a Services Order, the provisions in the Services Order shall prevail for the period and Services to which it applies. 

1.2 CLIENT accepts that that these terms and conditions shall apply to the provision of the Services unless otherwise specifically agreed in writing with CLIENT; and shall take precedence over any general or specific purchase policy CLIENT may have published in the public domain, or any terms and conditions of purchase stipulated on CLIENT’s Purchase Order form or similar instruction to proceed, which shall be regarded as void if they are in conflict with these terms and conditions.

2. TERM & TERMINATION 

2.1  This Agreement, shall come into effect on the earlier of the Start Date specified in the Services Order or the date of signing the Services Order. 

2.2 The Services shall be provided for the period identified in the Services Order, unless the Services Order is earlier terminated for any valid reason, in which event provision of the Services shall cease at the valid termination date.

2.3 Subject always to any special termination provisions that are detailed in a Services Order, either Party may terminate this Agreement, by giving notice in writing to the other Party, on the happening of any of the following events:

2.3.1   If either Party materially breaches any provision of this Agreement, or is not in compliance with any applicable national or local law, regulations and ordinances (“Applicable Laws”) the other Party may terminate it; immediately, if the breach is incapable of remedy, by giving the defaulting Party notice of the breach; or at the end of a 30-day period following the notice if the breach is capable of being remedied and has not been remedied during that period. 

2.3.2 Immediately if the other Party becomes bankrupt or goes into liquidation (except as part of a genuine corporate reconstruction), administration or receivership, or makes an arrangement with its creditors or the equivalent of any of these occurs under any Applicable Laws.

2.3.3 Provided that it has complied with Clause 6 (Fees) at the date of termination, the CLIENT may terminate the Services specified in a Services Order upon 90 days' prior written notice to ACONEX, which notice must be delivered to ACONEX within the first 90 days from date of signing the Services Order. 

2.4 On termination of this Agreement or Services Order/s for any reason:

2.4.1 CLIENT must immediately cease all use of the Services as set out in the terminated Services Order/s and promptly certify in writing to ACONEX that this has been done; and

2.4.2 at CLIENT request, ACONEX shall produce an offline archive of  the Information that has been uploaded onto the Software pursuant to the terminated Services Order/s. This service is provided at a reasonable cost, unless termination is due to breach by ACONEX, in which case the Information is provided to CLIENT free of charge.  

3. GRANT OF LICENCE AND USE

3.1 ACONEX hereby grants to CLIENT a non-exclusive, non-transferable licence to use the Services as set out in this Agreement. 

3.2 CLIENT may use the Services only (i) in accordance with the User Guides, Release Notes and Helpdesk Guide (Service Documentation) made available to CLIENT electronically as part of ACONEX’s Software implementation procedure; and (ii) in accordance with the service level specifications provided at Clause 12 below; all as updated from time to time.

3.3 ACONEX will provide the Services at the times and to the service levels and response times specified in the relevant Service Documentation. In order to develop and enhance the Services, ACONEX reserves the right to release maintenance patches (“Fixes”) and incremental versions of the Software (“Upgrades”) to the live production Software.

3.4 ACONEX reserves the right to make changes to the supply chain which are necessary to comply with any Applicable laws or safety requirement; and to facilitate improvements and enhancements to the Services, where such changes do not negatively impact the quality, security or robustness of the Services provided.

4.  RESTRICTIONS ON USE    

4.1 CLIENT must not

4.1.1 modify, disassemble, reverse engineer, translate, decompile, create derivative works or otherwise alter the Services; or

4.1.2 use the Services to publish, post, distribute or disseminate personal information on individuals prohibited under Applicable Laws or in breach of the legal rights of others.

4.2 CLIENT must take all reasonable measures to ensure that it has effective systems in place designed to prevent uploading, emailing or otherwise transmitting to the Software any data containing software viruses or any other computer code designed to interrupt, destroy or limit the functionality of any Software or hardware or telecommunications equipment.

4.3 CLIENT acknowledges and undertakes that it will 

4.3.1 comply in all material respects with ACONEX’s reasonable instructions concerning supply and use of the Services, including the procedures for entering and amending Information as set out in the Service Documentation; and 

4.3.2 use and adhere to the user names, passwords, and any authentication codes or security procedures which ACONEX notifies to CLIENT from time to time; and

4.3.3 establish reasonable security precautions, accuracy checks and back up procedures (by which we mean keep copies of the original data uploaded, as per best practice) in respect of CLIENT data and operational procedures (“Safeguards”) to guard against possible unauthorised access, inaccuracy, or loss of CLIENT data howsoever caused, in its use of the Services.

4.4 It is the CLIENT’s responsibility to check it has the appropriate browsers and operating system in its local environment and to ensure that it obtains and maintains in place all necessary licences and permissions in respect of any third party software it may use in connection with any Services. 

5. END USERS 

5.1 ACONEX does not grant sub-licences. Any Participant who has been selected by CLIENT to use the Services and who has accepted the terms of the legal notice (“Legal Notice”) on accessing the Software (an "End User") will be permitted to use the Services.

5.2 Access to and use of the Services by an End User is dependent upon

5.2.1 this Agreement remaining in force; and

5.2.2  CLIENT’s payment to ACONEX of the Fees (as defined in Clause 6.1); and

5.2.3 CLIENT’s continuing willingness to collaborate with such End User, to the extent that ACONEX will deny access to such End User in respect of which CLIENT so instructs ACONEX in writing.

5.3 ACONEX reserves the right to suspend the Services to any End User who is a direct competitor of ACONEX, or who is in breach of the Legal Notice, but will use all reasonable endeavours to notify CLIENT of any such denial of access in advance. 

5.4 If CLIENT learns that any End User is not complying with the terms of the Legal Notice, CLIENT shall notify ACONEX without delay. 

6. FEES 

6.1 CLIENT shall pay ACONEX the Fees in respect of the Services at the rates and according to the timetable for payment set out in the relevant Services Order (“Fees”). 

6.2  All Fees and rates are exclusive of VAT, Withholding or any similar taxes, which are payable by CLIENT, and invoices are payable within 30 days of date of invoice. CLIENT acknowledges and agrees that ACONEX is entitled to suspend or terminate the supply of the Services until payment is made by CLIENT (in respect of which properly due Fees are outstanding for more than 30 days) providing ACONEX shall have given CLIENT 10 days’ notice of such suspension.

6.3 ACONEX Fees do NOT include 

6.3.1  computer and telecommunications equipment and associated software and services such as PCs, modems, printers or any other such item CLIENT may need to access and use the  Services;

6.3.2 communication charges, access charges, levies, tariffs or other related costs, whether between CLIENT and ACONEX (including internet or web site access), or the End Users, or anyone else; or

6.3.3 installation and testing of any communications lines, links or interfaces or any equipment or other service CLIENT uses in connection with the Services; or

6.3.4  provision to CLIENT of support of a “call centre” nature or other support concerning connection to or operation of the Services over and above the technical support to be provided by ACONEX in accordance with Clause 3.3 or as set out in a Services Order. For the avoidance of doubt it is understood that provision of on-line and telephone support is included in the Fees.  

6.4 All of the above and any associated costs are entirely the responsibility of CLIENT; and if CLIENT wishes ACONEX to provide any product or support that is not part of the Services, ACONEX may do so at its sole option, and CLIENT will be charged separately in accordance with ACONEX’s current rates.  

7. ACONEX’s PROPERTY RIGHTS  

7.1 The Licence granted to CLIENT in Clause 3.1 above is personal to CLIENT and CLIENT is not permitted to assign, transfer, sub-licence, rent, lease, network or grant any right or interest, or otherwise dispose of any of its licensed rights to use the Services or any component of it to a third party. No user, use or internal or external distribution of the Services is permitted other than those set out in Clauses 3 and 5. Nothing in this Agreement shall transfer any proprietary rights in the Services from ACONEX to CLIENT.

7.2 Subject to Clause 8, ACONEX is either the sole and exclusive owner or an authorised licensee or user of all intellectual property or database rights (“IPRs”) in the Services (including any databases, images, "applets", photographs, animations, video, audio, music and text) and reserves all its rights. 

7.3 If CLIENT learns of any claim that the Services or any part of them infringes any IPRs of any third party in a jurisdiction in which CLIENT or Participant is entitled to use such Services, ACONEX will indemnify CLIENT and hold CLIENT harmless against any damages or costs arising from the claim; provided that:

7.3.1 CLIENT informs ACONEX of the claim immediately, and prior to responding to the claimant, lets ACONEX settle or litigate it using counsel of its own choosing and does not itself settle or litigate it; and

7.3.2  the claim does not arise from CLIENT’s breach of this Agreement. 

7.4  In the event of any claim or if CLIENT’s use of any part of the Services is restricted as a result of any claim, ACONEX may at its option and expense  

7.4.1 obtain the right for CLIENT to continue to use the Services; or

7.4.2 modify or replace the Services for CLIENT to use; or 

7.4.3 if the use of the Services is permanently prevented by the courts, terminate the Services and refund any Fees pre-paid by CLIENT with respect to future delivery of the terminated portion of the Services.   

7.5 ACONEX shall not be liable if a claim results directly from an act or omission by CLIENT that is not in accordance with the terms and conditions of this Agreement or which is not authorised by ACONEX. 

7.6 In consideration of CLIENT co-operating with ACONEX in its settlement or litigation concerning such claim, ACONEX will pay any reasonable expenses that the CLIENT may incur by so co-operating.

7.7 This Clause 7 states ACONEX’s entire liability and CLIENT’s entire remedy in respect of any infringement of third party IPRs by the Services.

8. CLIENT BRANDING AND DATA  

8.1  CLIENT warrants that it is the owner or authorised user of all IPRs and all other rights in its corporate branding, such as its trade marks or names or logos (“CLIENT Branding”). 

8.2 CLIENT agrees that for the purpose of customising its pages and Information on the Services, and subject to the terms of this Agreement, ACONEX may incorporate items of CLIENT Branding, and CLIENT hereby grants to ACONEX a non-exclusive licence for the duration of this Agreement, to do so. If for this purpose it is necessary for ACONEX to become a registered user of any CLIENT Branding, CLIENT undertakes promptly to do everything reasonably necessary to procure ACONEX such registration.

8.3  CLIENT acknowledges and agrees that it is entirely responsible for the Information and any use that it may make of it; and that ACONEX shall have no responsibility for the Information or such use, other than as provided for under the terms of this Agreement. Without prejudice to the generality of the foregoing, CLIENT hereby undertakes to ACONEX to fully comply with all Applicable Laws; and not to publish, enter or upload, transmit or download any message or material that is in conflict with any Applicable Laws or that might otherwise be likely to cause annoyance or distress to any person; or infringes the copyright or other intellectual property rights of any other person, company or partnership, anywhere in the world; nor to act in a manner that constitutes, or may involve ACONEX in, sending any unsolicited e-mail to persons unknown to CLIENT (generally referred to as “spamming”).

8.4  CLIENT agrees that in order for ACONEX to fulfil its obligations under this Agreement and in consideration of the Licence granted to CLIENT, ACONEX may process the Information owned by CLIENT or which CLIENT otherwise has the right to make available, and CLIENT grants ACONEX a non-exclusive licence for this purpose, for the term of this Agreement, in order to provide access to the Information to Participants, in relation to Projects. CLIENT also acknowledges and agrees that in so processing the Information and otherwise supplying the Services ACONEX may access the Information to incorporate into aggregated statistical information. Both Parties acknowledge and agree that all IPR belonging to either Party shall remain vested in that Party and, for the avoidance of doubt, none of the IPR in the Information shall pass to ACONEX.

8.5  CLIENT reserves all its rights in CLIENT Branding and its contributions to the Information. If ACONEX learns of any claim that any part of CLIENT  Branding or CLIENT contribution to the Information or any part of it infringes any IPR of any third party, CLIENT will indemnify ACONEX and hold ACONEX  harmless against any damages or costs arising from the claim; provided that 

8.5.1 ACONEX informs CLIENT of the claim and lets CLIENT settle or litigate it; and 

8.5.2 the claim does not arise from ACONEX’s breach of this Agreement.  

8.6 In consideration of ACONEX co-operating with CLIENT in its settlement or litigation concerning such claim, CLIENT will pay any reasonable expenses ACONEX may incur by so co-operating.

8.7 This Clause 8 states CLIENT’s entire liability to ACONEX in respect of such infringement.

9. CONFIDENTIALITY  

9.1 If CLIENT learns about or is informed of any of the components, processes or methods of operating any Software it will treat that knowledge or information as ACONEX’s trade secret and not use it to the benefit of any party other than ACONEX or convey it in any way to any third party or allow any third party to acquire it to the detriment of ACONEX.

9.2  ACONEX and CLIENT each undertakes to the other not to disclose to any third party any information about the other, its business, and its methods or processes which is identified to the other as being confidential in nature, or a trade secret, and is not in the public domain and generally available (unless it enters the public domain through breach of this provision by the other). However, CLIENT may make information concerning the Services available to its auditors or to tax, excise or similar authorities, but only to the extent that is required by law.

9.3 CLIENT agrees that ACONEX may use CLIENT’s name and logo on its website and in its customer lists, marketing collateral and materials; and may issue a press release announcing the licensing transaction with CLIENT. ACONEX hereby undertakes to CLIENT that any action undertaken by ACONEX in this respect shall be in strict compliance with its undertaking at Clause 9.2 above.      

9.4 The provisions of this Clause 9 shall survive termination or expiry of this Agreement.

10. DISCLAIMER 

10.1 ACONEX shall at all times use all reasonable endeavours to maintain the Services free of bugs and viruses and ensure that the Services are supplied to CLIENT without interruption and conforms to ACONEX’s current published descriptions and specifications. ACONEX does not make any other warranties, guarantees or representations concerning the operation or performance of the Services. CLIENT is entirely responsible for deciding to select the Services for its own business purposes and neither ACONEX nor any of its servants or agents accepts any liability for any use to which CLIENT puts the Services. 

10.2 ACONEX does not accept any responsibility or liability for enabling CLIENT to link to any site on the internet other than its web site; or for the contents of any other site, whether one from which CLIENT may have been linked to, or to which CLIENT may link from, ACONEX's web site. In particular, ACONEX does not warrant that the Services will be uninterrupted or error-free and ACONEX shall not be liable for any delay in response time in accessing the internet.

11. LIMITATION OF LIABILITY 

11.1 Nothing in this Agreement shall exclude or limit ACONEX’s liability for (i) the tort of deceit (ii) death or personal injury caused by its negligence (iii) any breach of the obligations implied by s.12 Sale of Goods Act 1979 or s.2 Supply of Goods and Services Act 1982 or (iv) any other liability which cannot be excluded or limited by Applicable laws.

11.2 Save as provided elsewhere in this Clause 11, ACONEX shall have no liability for:

(a) loss of revenue;

(b) loss of actual or anticipated profits;

(c) loss of contracts;

(d) loss of the use of money;

(e) loss of anticipated savings;

(f) loss of business;

(g) loss of opportunity;

(h) loss of goodwill;

(i) loss of reputation;

(j) loss of, damage to or corruption of data; or

(k) any indirect or consequential loss howsoever caused (including, for the avoidance of doubt, where such loss is of the type specified in this Clause 11), and such Liability is excluded whether it is foreseeable, known, foreseen or otherwise. For the avoidance of doubt, paragraphs (a)-(j) apply whether such losses are direct, indirect, consequential or otherwise.

11.3 SAVE AS PROVIDED OTHERWISE IN THIS CLAUSE 11, REGARDLESS OF WHETHER A CLAIM ARISES IN CONTRACT, TORT OR OTHERWISE, UNDER NO CIRCUMSTANCES WILL ACONEX'S LIABILITY (INCLUDING ITS OFFICERS, EMPLOYEES, CONTRACTORS, AFFILIATES AND AGENTS): (A) IN ANY MONTH BE GREATER THAN 110% OF THE MONTHLY FEE FOR THAT MONTH; AND (B) ACONEX'S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT EXCEED THE SUM OF 110% OF THE TOTAL FEES PAID OR PAYABLE TO THE DATE THE CLAIM AROSE.

11.4     CLIENT should have put in place reasonable Safeguards and taken reasonable steps to minimise any loss, and therefore ACONEX shall not be liable for any additional damages arising from its negligence or otherwise that are caused by insufficient Safeguards or CLIENT’s failure to minimise such loss.

11.5 Nothing in this Agreement shall exclude or limit CLIENT’s liability for (i) the tort of deceit (ii) death or personal injury caused by its negligence (iii) loss or damage as a result of any unauthorised access to, or use or misuse of, any Services by any of CLIENT’s Participants (including any End User) if that access or use or misuse was enabled or permitted by CLIENT, or (iv) any other liability which cannot be excluded or limited by Applicable Laws.

11.6 The limitation of Liability under this Clause 11 has effect in relation both to any liability expressly provided for under this Agreement and to any liability arising by reason of the invalidity or unenforceability of any term of this Agreement.

12.  SERVICE LEVEL SPECIFICATION  

12.1 The Software

12.1.1 The Software shall comply with ACONEX’s Service Documentation and the service level specification provided in this Clause 12.

12.1.2 The Software is developed by ACONEX on an on-going basis, and Service Documentation will be periodically updated to include any additional functionality that is added to the Software.

12.1.3 All existing Information and Project data will remain fully compatible with the Service following any Upgrade to the Service, and in any event, will be capable of being produced and provided in a recognised industry standard format (e.g. XML).

12.1.4 The Service will create and contain a full audit trail ("Audit Trail") of Information and Project data and the Audit Trail shall be accessible through the use of a searchable database. 

12.2 ACONEX Operational Service

12.2.1 Availability 24 hours/day, 365 days/year;

12.2.2 Telephone and email support (“Helpdesk”);

12.2.3 Resilient hosting infrastructure;

12.2.4 Incorporated firewalls and virus protection;

12.2.5 Daily offsite backups (retained for 1 month);

12.2.6 Minimum monthly service availability of 99.5% (excluding planned maintenance);

12.2.7 Access from any standard PC using a standard web browser and from various mobile devices.

12.3 The Support Services

12.3.1 CONJECT consultancy, implementation and training services will be consistent with CONJECT’s published guidelines and will be to a standard that should allow any person who is reasonably competent in their job role to operate the Service.

12.3.2 CONJECT implementation & configuration services will be undertaken with proper care and skill by competent CONJECT personnel or appointed consultants.

13.  ASSIGNMENT 

13.1 Neither Party may assign, directly or indirectly, all or part of its rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. The rights and obligations of this Agreement shall bind and benefit any successors or assigns of the Parties.

14. WHOLE AGREEMENT 

14.1 These terms and conditions, the Services Order and any document referred to in it comprise the whole agreement between CLIENT and ACONEX relating to the subject matter of this Agreement and supersede all prior agreements, arrangements and understandings between the Parties concerning that subject matter. Each Party acknowledges that in entering into this Agreement it does not rely on and shall have no remedy in respect of any statement of fact or opinion not recorded in this Agreement (whether innocently or negligently made). In order to be binding, any amendment, waiver or variation of this Agreement must be set out in writing, expressed to amend this Agreement and be signed by or on behalf of both ACONEX and CLIENT, on or after the date of this Agreement.

15. NOTICES 

15.1  Any notice or other document to be served under this Agreement may be personally delivered or sent by first class recorded delivery post (or equivalent) or facsimile process to the Party to be served at the registered place of business of such Party (set out at the beginning of this Agreement), or at such other address as it may have notified the other party in accordance with this Clause 15.

15.2 In proving service of a notice or document it shall be sufficient to provide evidence that delivery was made or that the envelope containing the notice or document was properly addressed and posted as a first class recorded delivery letter or that the facsimile message was properly addressed and dispatched, as the case may be.

16. WAIVERS 

16.1 A waiver (whether expressed or implied) by one of the Parties of any of the provisions of this Agreement or of any breach of or default by the other Party in performing any of those provisions shall not constitute a continuing waiver and that waiver shall not prevent the waiving Party from subsequently enforcing any of the provisions of this Agreement not waived or from acting on any subsequent breach of or default by the other Party under any of the provisions of this Agreement.

17. SEVERABILITY 

17.1 The invalidity, illegality or unenforceability of any of the provisions of this Agreement shall not affect the validity, legality and enforceability of the remaining provisions of this Agreement.

18. RIGHTS OF THIRD PARTIES 

18.1 A person, company or other organisation who is not a party to this Agreement has no right to enforce any term of this Agreement.

19. COMPLIANCE WITH LAWS AND REGULATIONS

19.1 Each Party warrants and undertakes to the other that in performing its obligations under the terms of this Agreement it will comply with all Applicable Laws.  

19.2 Each Party hereby agrees to fully indemnify and keep indemnified the other against all damages, costs, fines, actions, proceedings, claims, demands, liabilities and expenses (including, without limitation, legal and other professional fees and expenses reasonably and properly incurred) which the other may suffer, sustain, incur, pay or be put to arising directly or indirectly from any failure by one of us to comply with these provisions concerning Applicable Laws.

20. DISPUTE RESOLUTION

20.1 Negotiation. If any dispute arises between the Parties in respect of this Agreement, or any related document; a Party must (a) issue a written notice to the other Party notifying them of the existence of a dispute; and (b) use good faith efforts to resolve the dispute through negotiation.

20.2 Escalation. In the event that negotiations pursuant to Clause  20.1 do not resolve the dispute within 15 Business Days (or such longer period as may be agreed between the Parties), the dispute will be referred to the respective chief executive officers (or their nominees - external counsel excluded) of each Party for good faith negotiations.

20.3 Filing of Actions. Neither Party may file an action to resolve a dispute prior to 20 Business Days (or such other period as may be agreed between the Parties) after an escalation pursuant to Clause 20.2.

21. PRIVACY/DATA PROTECTION

21.1.1  If and to the extent Aconex, Aconex’ employees or third party sub-contractors process personal data of Client (hereinafter “Data”), the following provisions of this Section apply.

21.1.2 In each case, Client is solely responsible for the adherence to the legal provisions of the data protection laws, in particular for the transfer of the Data to Aconex as well as for the legality of the Data processing and the assessment of their admissibility and the protection of the rights of affected third parties. The duty to keep the public process register (Every Man’s Register) lies with Client. Client is also required to inform Aconex immediately and fully of any defects of the Data.

21.1.3 Subject matter and term of the order are set forth in the respective Individual Services Order between the parties. Unless otherwise or more concretely specified in the Individual Services Agreement between the parties, “Data” is deemed to be the address data of the receivers and senders of messages with regard to whom Aconex is supposed to render processing and transfer attempts. The Data is not collected by Aconex, but is turned over to Aconex by Client, to be used by Aconex in such a way that Aconex is taking this Data from the message or a mailing list and uses it to conduct the transfer attempts owed to Client.

21.1.4 Aconex will design its internal technical and operational processes in such a way that they comply with the requirements of data protection, as well as undertake measures to appropriately safeguard the Data against misuse and loss (in particular measures of entry, admission, access, transfer, input, order, availability and separation control), provided that the costs of this design and these measures are in a reasonable relation to the protective purpose and to the compensation owed by Client, as determined by Aconex’ reasonable discretion. Upon the written request of Client, Aconex will provide to Client a comprehensive and current data protection and safety concept for this data processing by the order of Client as well as the information required for the overview.

21.1.5 Aconex ensures that the employees handling the Data processing are duty-bound (data secrecy) and have been instructed on the protective regulations of the Directive 95/46/EC and respectively its country specific implementation. Aconex will inform Client about the contact details of the company’s data protection officer, which currently is: daniela.duda@aconex.com.

21.1.6 Client has the right to issue instructions regarding the collection, processing and use of the Data at any time (such right to be exercised in writing). In particular, Aconex will correct, block or delete specifically listed Data upon written request of Client and against a reasonable fee. If the exercise of the right to issue instructions causes efforts on the part of Aconex which exceed the Services set forth in the Individual Services Order or Aconex’ duties under the relevant provision of the data protection law, Aconex will comply with the instruction only against a separate compensation of the efforts arising thereof.

21.1.7 Client acknowledges and agrees that Aconex may retain Aconex’s Affiliates as Sub-processors and that Aconex may engage third-party processors in connection with the provision of the Services. This may include the involvement of Sub-processors located outside of a Member State of the European Union or a signatory state of the Agreement on the European Economic Area. Any such Sub-processor will be permitted to process Personal Data only to deliver the services Aconex has retained it to provide and for no other purpose. Aconex will ensure an adequate level of protection according to applicable laws and will make available to Client a current list of Sub-processors for the Services upon request. Aconex will be liable for the acts and omissions of any Sub-processor to the same extent as if the acts or omissions were performed by Aconex.

21.1.8 Upon prior written notice (at least 15 working days prior) and during the usual Aconex’ business hours Client may verify the appropriateness of the measures taken to ensure compliance of the technical and organizational requirements of the data protection laws applicable for data processing by order (“Or¬der Control”) provided that an interruption of the operations of Aconex is ruled out. Aconex may deny Client’s notices, even without stating reasons, provided that with such denial, Aconex offers multiple, but at least three, alternative dates to Client. Client undertakes to inform Aconex upon written re-quest and at the expense of Client within a reasonable period of everything that is required in order to conduct a comprehensive Order Control. Aconex will inform Client within reasonable scope of the technical and organizational measures taken. This may, as the case may be, include the preparation of a process description as well as, if required, the preparation of a preliminary control, with respect to which Aconex will support Client to the extent reasonable and within the personnel resources available against a separate compensation of the efforts arising thereof.

21.1.9 Aconex will inform Client of material interruptions in the processing operation and material breaches of the specifications contained in this agreement or the relevant provision of the data protection law, relating to data processing by order.

21.1.10 Aconex undertakes to inform Client at all times provided that its personal data or documentation are affected. Aconex will undertake the destruction of testing and scrap materials in compliance with the data protection regulations on the basis of a separate Individual Service Agreement against cost compensation. In special cases to be designated by Client, a retention or transfer will be undertaken. Should Client be obligated to an individual by applicable data protection laws to give information on the collection, processing or use of personal data of such individual, Aconex will support Client in providing this information, provided that (i) Client has requested such support from Aconex in writing and (ii) Client will compensate Aconex for the costs incurred because of such support.

21.1.11 Unless otherwise specified in the Individual Services Order Agreement and unless otherwise required by rules of law, Aconex is entitled and, upon written request of Client, obliged to return data carriers provided by Client and to delete data stored by order of Client.

21.1.12 Aconex will diligently store the data carriers provided by Client. Unless otherwise specified in the Individual Service Agreement and unless otherwise required by rules of law, Aconex is entitled and, upon written request of Client during or upon expiration of the agreement, obliged to return data carriers provided by Client. The deletion or destruction of data or data carriers has to be confirmed for Client in writing.

21.1.13 Should Client’s personal data be endangered by seizure or sequestration, by insolvency or preliminary insolvency proceedings or by other events or measures of third parties, Aconex shall immediately inform Client thereof. Aconex shall immediately inform all those responsible in this context that the dominion of the data lies with Client.

22. GOVERNING LAW 

22.1 This Agreement is governed by and shall be construed in accordance with English law and the English courts shall have exclusive jurisdiction over it.