BACKGROUND
- Provider provides web-based website software solutions to manage website and web content, includes all covered in the proposal
- Customer is a car dealer using the website to list inventory, gets customers to view the details of car available at the dealership
- The Provider and the Customer, therefore, wish to enter into a contract in accordance with the provisions of this Agreement.
Terms and Conditions
Please read these Terms and Conditions carefully. All contracts that the Provider may enter into from time to time for the provision of the Hosted Services and related services shall be governed by these Terms and Conditions, and the Provider will ask the Customer for the Customer’s express written acceptance of these Terms and Conditions before providing any such services to the Customer.
An updated “Accepted use Policy” to be agreed before each login
1. Definitions
1.1 Except to the extent expressly provided otherwise, in these Terms and Conditions:
“Account” means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;
“Agreement” means a contract made under these Terms and Conditions between the Provider and the Customer;
“Business Day” means any weekday other than a bank or public holiday in Nova Scotia Canada;
“Business Hours” means the hours of 09:00 to 17:00 AST on a Business Day;
“Charges” means the amounts specified in proposal or as described on website;
“Customer” means the person or entity identified as such in the Services Lead Form;
“Customer Data” means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files);
“Customer Personal Data” means any Personal Data that is processed by the Provider on behalf of the Customer in relation to the Agreement;
“Data Protection Laws” means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679);
“Documentation” means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
“Effective Date” means following the Customer completing and submitting the online Services Order Form published by the Provider on the Provider’s website, the date upon which the Provider sends to the Customer an order confirmation;
“Force Majeure Event” means 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);
“Hosted Services” means, which will be made available by the Provider to each Customer as a service via the internet in accordance with these Terms and Conditions;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Mobile App” means the mobile application known as that is made available by the Provider through the Google Play Store and the Apple App Store;
“Personal Data” has the meaning given to it in the Data Protection Laws applicable in Canada from time to time;
“Platform” means the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
“Provider” means PreAuto Co, a company located at 1999 Harrison St Suite 1800 Oakland Ca 94612
“Services” means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;
“Services Order Form” means an online order form published by the Provider and completed and submitted by the Customer incorporating these Terms and Conditions by reference;
“Support Services” means support in relation to [the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services];
“Supported Web Browser” means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported;
“Maintenance Services” means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
“Term” means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2; and
“Terms and Conditions” means all the documentation containing the provisions of the Agreement, namely the main body of these Terms and Conditions and Schedule 1 (Acceptable Use Policy), including any amendments to that documentation from time to time.
2. Term
2.1 The Agreement shall come into force upon the Effective Date.
2.2 The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 16.
2.3 Unless the parties expressly agree otherwise in writing, each Services Order Form shall create a distinct contract under these Terms and Conditions.
3. Hosted Services
3.1 The Provider hereby grants to the Customer a non-exclusive license to use the Hosted Services by means of a Supported Web Browser in accordance with the Documentation during the Term.
3.2 The license granted by the Provider to the Customer under Clause 3.1 is subject to the following limitations:
(a) The Hosted Services may only be used by registered employees;
(b) The Hosted Services may only be used by the named users identified as an employee, providing that the Customer may change, add or remove a designated named user in accordance with the procedure set out therein and;
(c) the Hosted Services must not be used at any point in time by more than the number of concurrent users specified in no of users as per agreed terms providing that the Customer may add or remove concurrent user licenses in accordance with the procedure set out therein.
3.3 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the license granted by the Provider to the Customer under Clause 3.1 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosted Services;
(b) the Customer must not permit any unauthorized person to access or use the Hosted Services;
(c) the Customer must not use the Hosted Services to provide services to third parties;
(d) the Customer must not republish or redistribute any content or material from the Hosted Services;
(e) the Customer must not make any alteration to the Platform, except as permitted by the Documentation; and
(f) the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services without the prior written consent of the Provider.
3.4 The Customer shall use reasonable endeavours, including reasonable security measures relating to administrator Account access details, to ensure that no unauthorized person may gain access to the Hosted Services using an administrator Account.
3.5 The Provider shall use reasonable endeavours to maintain the availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Hosted Services, but does not guarantee 100% availability.
3.6 The Customer must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an administrator Account comply with Schedule 1 (Acceptable Use Policy).
3.7 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
3.8 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
3.9 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
3.10 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least [15 days’] written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
4. Customer Data
4.1 The Customer hereby grants to the Provider a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under the Agreement. The Customer also grants to the Provider the right to sub-license these rights [to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in the Agreement].
4.2 The Customer warrants to the Provider that the Customer Data OR the Customer Data when used by the Provider in accordance with the Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach [the provisions of any law, statute or regulation in any jurisdiction and under any applicable law.
5. Support Services
5.1 The Provider may provide the Support Services to the Customer during the Term, but shall have no obligation to do so; any such Support Services shall be subject to this Clause 5.
5.2 The Provider shall make available to the Customer at support@datastruk.com.
5.3 The Provider shall provide the Support Services with reasonable skill and care OR in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider’s industry
5.4 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
5.5 The Provider shall respond promptly to all requests for Support Services made by the Customer through the helpdesk.
5.6 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least [15 days’] written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
6. Mobile App
6.1 The parties acknowledge and agree that the use of the Mobile App, the parties’ respective rights and obligations in relation to the Mobile App and any liabilities of either party arising out of the use of the Mobile App shall be subject to separate terms and conditions, and accordingly these Terms and Conditions shall not govern any such use, rights, obligations or liabilities.
7. No assignment of Intellectual Property Rights
7.1 Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
8. Charges
8.1 The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions.
8.2 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable taxes, which will be added to those amounts and payable by the Customer to the Provider.
8.3 The Provider may elect to vary by giving to the Customer not less than 30 days’ written notice of the variation.
9. Payments
9.1 The Customer must pay the Charges to the Provider in advance of the period to which they relate.
9.2 If the Customer does not pay any amount properly due to the Provider under these Terms and Conditions, the Provider may:
(a) charge the Customer interest on the overdue amount at the rate of 1% per month (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
10. Data protection
10.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
10.2 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement.
10.3 The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to the Agreement, the Personal Data of the following types: information collected from managed website and administrator website accessed using a login; and the Provider shall only process the Customer Personal Data for the following purposes: aid customers business of sale of goods
10.4 The Provider shall only retain and process the Customer Personal Data during the Term, subject to the other provisions of this Clause 10.
10.5 The Provider shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data), as set out in these Terms and Conditions or any other document agreed by the parties in writing.
10.6 The Provider shall promptly inform the Customer if, in the opinion of the Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
10.7 Notwithstanding any other provision of the Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
10.8 The Provider shall ensure that persons authorized to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
10.9 The Provider and the Customer shall each implement appropriate technical and organizational measures to ensure an appropriate level of security for the Customer Personal Data, including the measures specified in the information security policy of the Provider (as it may be updated by the Provider from time to time).
10.10 The Provider must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, the Provider shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Provider must not implement the changes OR the Customer may terminate the Agreement on 30 days’ written notice to the Provider, providing that such notice must be given within the period of 30 days following the date that the Provider informed the Customer of the intended changes.
10.11 As at the Effective Date, the Provider is hereby authorized by the Customer to engage, as sub-processors with respect to Customer Personal Data.
10.12 The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.
10.13 The Provider shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 10.13.
10.14 The Provider must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay and, in any case, not later than 72 hours after the Provider becomes aware of the breach.
10.15 The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under this Clause 10 and the Data Protection Laws. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 10.15, providing that no such charges shall be levied with respect to the completion by the Provider (at the reasonable request of the Customer, not more than once per calendar year) of the standard information security questionnaire of the Customer.
10.16 The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
10.17 The Provider shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Provider’s processing of Customer Personal Data with the Data Protection Laws and this Clause 10. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 10.17, providing that no such charges shall be levied where the request to perform the work arises out of any breach by the Provider of the Agreement or any security breach affecting the systems of the Provider.
10.18 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under the Agreement, then the parties shall use their best endeavours promptly to agree such variations to the Agreement as may be necessary to remedy such non-compliance.
11. Warranties
11.1 The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions.
11.2 All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
12. Acknowledgements and warranty limitations
12.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
12.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
12.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
12.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
13. Limitations and exclusions of liability
13.1 Nothing in these Terms and Conditions will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law,
and, if a party is a consumer, that party’s statutory rights will not be excluded or limited by these Terms and Conditions, except to the extent permitted by law.
13.2 The limitations and exclusions of liability set out in this Clause 14 and elsewhere in these Terms and Conditions:
(a) are subject to Clause 13.1; and
(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
13.3 The Provider will not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.
13.4 The Provider will not be liable to the Customer in respect of any loss of profits or anticipated savings.
13.5 The Provider will not be liable to the Customer in respect of any loss of revenue or income.
13.6 The Provider will not be liable to the Customer in respect of any loss of business, contracts or opportunities.
13.7 The Provider will not be liable to the Customer in respect of any loss or corruption of any data, database or software.
13.8 The Provider will not be liable to the Customer in respect of any special, indirect or consequential loss or damage.
13.9 The liability of the Provider to the Customer under the Agreement in respect of any event or series of related events shall not exceed the greater of:
(a) Set up fee and
(b) the total amount paid and payable by the Customer to the Provider under the Agreement in the 3 month period preceding the commencement of the event or events.
13.10 The aggregate liability of the Provider to the Customer under the Agreement shall not exceed the greater of:
(a) Set up fee and
(b) The total amount paid and payable by the Customer to the Provider under the Agreement.
13.11 Exceptions Downtime caused directly or indirectly by any of the following shall not be considered when calculating whether the Provider has met the uptime guarantee:
(a)a Force Majeure Event;
(b)a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Provider’s hosting infrastructure services provider, unless such fault or failure constitutes an actionable breach;
(d) a fault or failure of the Customer’s computer systems or networks;
(e) any breach by the Customer of this Agreement; or
(f) scheduled maintenance carried out in accordance with this Agreement.
14. Force Majeure Event
14.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
15. Termination
15.1 Either party may terminate the Agreement at the end of the period stipulated by the contract by giving to the other party at least 30 days’ written notice of termination.
15.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of these Terms and Conditions.
15.3 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(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 Agreement]; or
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.
16. Effects of termination
16.1 Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.9, 6, 9, 10.1, 10.3, 10.4, 10.5, 10.6, 10.7, 10.8, 10.9, 10.10, 10.11, 10.12, 10.13, 10.14, 10.15, 10.16, 10.17, 10.18, 13, 16, 19 and 20.
16.2 Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.
16.3 Within 30 days following the termination of the Agreement for any reason:
(a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and
(b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement,
16.4The information stored would be deleted at the end of 30 day period and all access revoked.
without prejudice to the parties’ other legal rights.
17. Notices
17.1 Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods:
(a) sent by email to the relevant email address specified through the Hosted Services, in which case the notice shall be deemed to be received [upon receipt of the email by the recipient’s email server; or
(b) sent using the contractual notice mechanism incorporated into the Hosted Services, in which case the notice shall be deemed to be received,
providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
18. Subcontracting
18.1 Subject to any express restrictions elsewhere in these Terms and Conditions, the Provider may subcontract any of its obligations under the Agreement, providing that the Provider must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.
19. General
19.1 No breach of any provision of the Agreement shall be waived except with the express written consent of the party not in breach.
19.2 If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision 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 (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
19.3 The Provider may vary the Agreement by giving to the Customer at least 30 days’ written notice of the variation. Subject to this, the Agreement may only be varied by a written document signed by or on behalf of each of the parties.
19.4 The Customer hereby agrees that the Provider may assign the Provider’s contractual rights and obligations under the Agreement to any successor to all or a substantial part of the business of the Provider from time to time – providing that such action does not serve to reduce the guarantees benefiting the Customer under the Agreement. The Customer must not without the prior written consent of the Provider assign, transfer or otherwise deal with any of the Customer’s contractual rights or obligations under the Agreement.
19.5 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
19.6 Subject to Clause 13.1, a Services Order Form, together with these Terms and Conditions and any Schedules, shall constitute the entire agreement between the parties in relation to the subject matter of that Services Order Form, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
19.7 The Agreement shall be governed by and construed in accordance with English version.
19.8 The courts of Halifax, Nova Scotia shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.
20. Interpretation
20.1 In these Terms and Conditions, 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.
20.2 The Clause headings do not affect the interpretation of these Terms and Conditions.
20.3 References in these Terms and Conditions to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.
20.4 In these Terms and Conditions, 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.
SCHEDULE 4 (MAINTENANCE SLA)
1.Introduction
1.1This Schedule 4 sets out the service levels applicable to the Maintenance Services.
2. Scheduled Maintenance Services
2.1The Provider shall where practicable give to the Customer at least 3 Business Days’ prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, without prejudice to the Provider’s other notice obligations under this Schedule 1.
2.2The Provider shall provide all scheduled Maintenance Services outside Business Hours where possible.
3.Updates
3.1The Provider shall give to the Customer written notice of the application of any security Update to the Platform and at least 3 Business Days’ prior written notice of the application of any non-security Update to the Platform.
3.2The Provider shall apply Updates to the Platform as follows:
(a)third party security Updates shall be applied to the Platform [promptly following release by the relevant third party, providing that the Provider may acting reasonably decide not to apply any particular third party security Update;
(b)the Provider’s security Updates shall be applied to the Platform [promptly following the identification of the relevant security risk and the completion of the testing of the relevant Update; and
(c)other Updates shall be applied to the Platform in accordance with any timetable notified by the Provider to the Customer or agreed by the parties from time to time.