Fonn Ltd is a company incorporated in England and Wales with company number 12312957 whose registered office is 2 Fredrick Street, Kings Cross. London, WC1 0ND and references to “we”, “us”, and “our” in these Terms and Conditions of Service should be read as references to FONN Ltd & FONN AS
We have developed an online service for field construction management available through our web applications, mobile applications, and our website (and related websites) (collectively referred to as “Service”).
These Terms and Conditions of Service together with any Order Form/s signed by the parties from time to time form the agreement and set out the conditions on which we will provide the Service. You are the Customer identified in the Order Form and references to “you” or “your” in these Terms and Conditions of Service should be read as references to the Customer named in the Order Form.
In the event of any conflict or inconsistency between these Terms and Conditions of Service and the Order Form, the provisions of the Order Form shall take precedence over these Terms and Conditions of Service.
These Terms and Conditions of Service apply to the agreement to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
For the avoidance of doubt, the Order Form may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one Order Form. Transmission of the executed Order Form by email (in PDF, JPEG or other agreed format) shall take effect as the transmission of an executed "wet-ink" counterpart of the Order Form. If either method of transmission is adopted, without prejudice to the validity of the agreement thus made, each party shall on request provide the other with the "wet ink" hard copy original of their counterpart. No counterpart shall be effective until each party has delivered to the other at least one executed counterpart.
It is agreed as follows:
1 Definitions and Interpretation
1.1 The following definitions shall apply to these Terms and Conditions of Service:.
“agreement”: has the meaning given in the third paragraph of these Terms and Conditions of Services.
“Business Hours": 9.00 am to 5.00 pm local UK time, each Business Day.
"Change of Control": shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be interpreted accordingly OR the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be interpreted accordingly.
"Confidential Information": information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.1.
"Customer Data": the data inputted by you, any Authorised Users, or by us on your behalf for the purpose of using the Service or facilitating your use of the Service.
“Data Protection Laws”: means any applicable law relating to the processing, privacy and use of personal data, as applicable to either party or the Services, including:
(a) the GDPR (as defined);
(b) the Data Protection Act 2018;
(c) the Privacy and Electronic Communications (EC Directive) Regulations 2003;
(d) any other applicable law relating to the processing, privacy and/or use of personal data;
(e) any laws which implement any such laws; and
(f) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing.
"Documentation": all manuals, data, documents, and information that is prepared, written, made accessible, provided or developed by us or our licensors in connection with the Service, including help desk and technical support documentation made available to you via our platform or such other web address notified by us to you from time to time which sets out a description of the Service and the user instructions for the Service.
"Effective Date": the effective date set out on the Order Form.
“GDPR”: means the General Data Protection Regulation, Regulation (EU) 2016/679 as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or a part of the United Kingdom from time to time).
"Heightened Cybersecurity Requirements": any laws, regulations, codes, guidance (from regulatory and advisory bodies. Whether mandatory or not), international and national standards and sanctions, which are applicable to either you or an Authorised User (but not to us) relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
“Initial Term": the initial subscription term of the agreement as set out in the Order Form clearly labelled as “Initial Term”.
"Mandatory Policies": the business policies developed by us listed below and that are available for review on our website and our platform, as amended from time to time.
“Order Form”: being the order form (and any supplementary sheets specified by the order form) setting out the Services to be provided to you and signed by the parties.
“party” or “parties”: is either us or you as the context dictates, and “parties” means both together.
“Permitted Purpose”: has the meaning given in clause 10.3(a).
"Renewal Period": the period described in clause 13.1 and set out in the Order Form.
“Representatives”: has the meaning given in clause 10.1.
"Service": the subscription Service provided by us to you under the agreement as notified to you by us from time to time, including other Service/s as set out in the agreement herein or more particularly described in the specific Order Form/s.
"Software": the online software applications including the visual interfaces, graphics, design, compilation, information, data computer code (including source code or object code) provided by us or our third party licensors as part of the Service, consisting of (but not limited to) the Modules specified in the Order Form.
"Subscription Fees": the per annum subscription fees payable by you to us for the User Subscriptions, as set out in the Order Form.
“Term": has the meaning given in clause 13.1 (being the Initial subscription Term together with any subsequent Renewal Periods).
"User Subscriptions": the user subscriptions purchased by you in the Order Form pursuant to clause 8.1 which entitle Authorised Users to access and use the Service and the Documentation in accordance with the agreement.
"Virus": any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices, and the term Viruses shall be interpreted accordingly.
"Vulnerability": a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.
2 User Subscriptions
2.1 Subject to you purchasing User Subscriptions in accordance with clause 8.1 below, the restrictions set out in this clause 2 and the other terms and conditions of the agreement, we hereby grant to you a non-exclusive, non-transferable right and licence, with the right to grant sublicences, to permit the Authorised Users to use the Service and the Documentation during the Term solely for your internal business operations.
2.2 In relation to the Authorised Users, you undertake that:
a) the Authorised Users (as defined) that you authorise to access and use the Service and the Documentation shall be either within your own company (and not within your wider group of companies) or sub-contractors or authorised third party users under your control;
b) each Authorised User shall keep a secure password for their use of the Service and Documentation, that such password shall be changed no less frequently than quarterly and that each Authorised User shall keep their password confidential;
c) you shall maintain a written, up to date list of current Authorised Users and provide such list to us within five (5) Business Days of our written request at any time or times;
d) you shall permit us to audit the Service in order to establish the name and password of each Authorised User and your data processing facilities to audit compliance with the agreement. Each such audit may be conducted no more than once per quarter, at our expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with your usual conduct of business;
e) if any of the audits referred to in clause 2.2 (d) reveal that any password has been provided to any individual who is not an Authorised User, or is employed within the wider corporate group and not the specific entity referred to as the “Customer” in the Order Form, then without prejudice to our other rights, you shall promptly disable such passwords and we shall not issue any new passwords to any such individual; and
f) if any of the audits referred to in clause 2.2 (d) reveal that you have underpaid Subscription Fees to us, then without prejudice to our other rights, you shall pay to us an amount equal to such underpayment as calculated in accordance with the prices set out in the Order Form within ten (10) Business Days of the date of the relevant audit.
c) depicts sexually explicit images;
d) promotes unlawful violence;
e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
f) is otherwise illegal or causes damage or injury to any person or property;
and we reserve our right, without liability or prejudice to our other rights to you, to disable your access to any material that breaches the provisions of this clause.
2.4 You shall not:
a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the agreement:
i. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
ii. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
b) access all or any part of the Service and Documentation in order to build a product or service which competes with the Service and/or the Documentation; or
c) use the Service and/or Documentation to provide Service to third parties; or
d) subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service and/or Documentation available to any third party except the Authorised Users, or
e) attempt to obtain, or assist third parties in obtaining, access to the Service and/or Documentation, other than as provided under this clause 2; or
f) introduce or permit the introduction of any Virus or Vulnerability into our network and information systems.
2.5 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify us.
2.6 The rights provided under this clause 2 are granted to you only and shall not be considered granted to any subsidiary or holding company of yours.
3.1 We shall, during the Term, provide the Service to you and make the Documentation available to you on and subject to the terms of the agreement. An additional Order Form for any other Service/s can always be agreed and added at a later date, as agreed between the parties and we shall grant access to the additional other Service/s and the Documentation, all in accordance with the provisions of the agreement.
3.2 We shall use commercially reasonable endeavours to make the Service available 24 hours a day, seven days a week, except for:
a) we shall use reasonable endeavours to perform planned maintenance during the maintenance window of 9:00 pm to 2.00 am UK time; and
b) we will use reasonable endeavours to give you at least three (3) hours notice in advance of any unscheduled maintenance which will negatively impact the system performance for more than fifteen (15) minutes
3.3 We will, as part of the Service and at no additional cost to you provide you with our standard customer support Service during Business Hours.
4 Data protection
The parties agree that you are a data controller and that we are a data processor for the purposes of processing protected personal data pursuant to the agreement. We shall, and shall ensure that our agents, subcontractors or other third parties engaged by us and each of our own personnel shall, at all times comply with all Data Protection Laws in connection with the processing of protected personal data and the provision of the Services and shall not by any act or omission cause you (or any other person) to be in breach of any of the Data Protection Laws. Nothing in the agreement relieves you of any responsibilities or liabilities it may have under the Data Protection Laws.
5 Third party providers
You acknowledge that the Service does not enable or assist you to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites. We shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any third-party website, or any transactions completed, and any contract entered into by you, with any third party. We do not endorse or supply any third-party website content via our Service.
6 Our obligations
6.1 We undertake that the Service will be performed substantially in accordance with the Documentation and with reasonable skill and care.
6.2 The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Service contrary to our instructions, or modification or alteration of the Service by any party other than us or our duly authorised contractors or agents. If the Service does not conform with the foregoing undertaking, we will, at our expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the undertaking set out in clause 6.1.
a) do not warrant that:
i. your use of the Service will be uninterrupted or error-free;
ii. that the Service, Documentation and/or the information obtained by you through the Service will meet your requirements;
iii. the Software or the Service will be free from Vulnerabilities or Viruses; or
iv. the Software, Documentation or Service will comply with any Heightened Cybersecurity Requirements;
b) are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Service and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.4 The agreement shall not prevent us from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to the Service provided under the agreement.
6.5 We warrant that we have and will maintain all necessary licences, consents, and permissions necessary for the performance of our obligations under the agreement.
6.6 We shall follow our archiving procedures for Customer Data as set out in our Back-Up and Security Policy (available on request), as such document may be amended by us in our sole discretion from time to time. In the event of any loss or damage to Customer Data, your sole and exclusive remedy against us shall be for us to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by us in accordance with the archiving procedure described in our Back-Up and Security Policy. We shall not be responsible for any loss, destruction, alteration, or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by us to perform services related to Customer Data maintenance and back-up).
7 Your obligations
7.1 You shall:
a) provide us with:
i. all necessary co-operation in relation to the agreement; and
ii. all necessary access to such information as may be required by us;
in order to provide the Service, including but not limited to Customer Data, security access information and configuration Services;
b) without affecting its other obligations under the agreement, comply with all applicable laws and regulations with respect to its activities under the agreement;
c) carry out all other responsibilities set out in the agreement which are applicable to you in a timely and efficient manner. In the event of any delays in your provision of such assistance (where such assistance has been greed by the parties), we may adjust any agreed timetable or delivery schedule as reasonably necessary;
d) ensure that the Authorised Users use the Service and the Documentation in accordance with the terms and conditions of the agreement and shall be responsible for any Authorised User's breach of the agreement including responsibility for any loss, destruction, alteration, or disclosure of Customer Data caused by any third party, sub-contractor User;
e) obtain and shall maintain all necessary licences, consents, and permissions necessary for us, our contractors and our agents to perform their obligations under the agreement, including without limitation the Service;
f) ensure that your network and systems comply with the relevant specifications provided by us from time to time; and
g) be, to the extent permitted by law and except as otherwise expressly provided in the agreement, solely responsible for procuring, maintaining and securing your network connections and telecommunications links from your systems to our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the your network connections or telecommunications links or caused by the internet.
7.2 You shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
8 Charges and payment
8.1 You shall pay the Subscription Fees to us for the User Subscriptions in accordance with this clause 8 and the Order Form, any other service fees identified in the Order Form or additional Order Forms signed at a later date, as well as (if applicable) any support fees payable in accordance with the agreement. You shall on the Effective Date provide to us valid, up-to-date, approved purchase order information acceptable to us (including where agreed complete credit card details) and any other relevant valid, up-to-date and complete contact and billing details. If you provide:
a) (where applicable) your credit card details to us, you hereby authorise us to bill such credit card:
i. on the Effective Date for the Subscription Fees payable in respect of the Initial Term; and
ii. subject to clause 13.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period; and
iii. for any other Service fees which may become payable under the agreement on the dates for payment agreed with you; otherwise
b) its approved purchase order information to us, we shall invoice you:
i. on the Effective Date for the Subscription Fees payable in respect of the Initial Term; and
ii. subject to clause 13.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period; and
iii. for any other Service fees which may become payable under the agreement on the dates for payment agreed with you,
and you shall pay each invoice within Ten (10) Business Days after the date of such invoice.
8.2 If we have not received payment within twenty (20) days after the due date, and without prejudice to any other rights and remedies available to us:
a) we may, without liability to you, disable your, account and access to all or part of the Service and we shall be under no obligation to provide any or all of the Service while the invoice(s) concerned remain unpaid; and
b) pursuant to clause 8.1 above, the Subscription Fees and any other Service fees additionally agreed by the parties as being payable under the agreement shall continue to accrue under the agreement, even when any Service/s are suspended; and
c) interest shall accrue on a daily basis on such due amounts at an annual rate equal to four (4)% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.3 All amounts and fees stated or referred to in the agreement:
a) shall be payable in pounds sterling;
b) are, subject to clause 12.3 (b) below, non-cancellable and non-refundable;
c) are exclusive of value added tax, which shall be added to our invoice(s) at the appropriate rate.
8.4 Where agreed on the Order Form, if, at any time whilst using the Service, you exceed the amount of data storage space specified in the Order Form, we shall be entitled to charge you, and you shall pay, our then current Excess Data Storage Fees. Our Excess Data Storage Fees current as at the Effective Date are set out in the Order Form if this is applicable to your order.
8.5 We shall be entitled to increase the Subscription Fees, at the start of each Renewal Period upon sixty (60) days' prior notice to you and the Order Form shall be deemed to have been amended accordingly.
8.6 Where agreed on the Order Form, we will store your data for 12 months after the termination of the agreement for free, unless the agreement has been terminated subject to clause 13.2. Following this you can extend the period for which we will store your data for the agreed fee amount set out on the order form. Following termination of the agreement, the provisions in this clause 8 shall continue to apply to any payments which are payable under this clause 8.6.
9 Proprietary rights
9.1 You acknowledge and agree that we and/or our licensors own all intellectual property rights in the Service and the Documentation. Except as expressly stated herein, the agreement does not grant you or any of your sub-licensees any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Service or the Documentation.
9.2 We confirm that we have all the rights in relation to the Service and the Documentation that are necessary to grant all the rights we purport to grant under, and in accordance with, the terms of the agreement.
10 Confidentiality and compliance with policies
10.1 Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or their Representatives (as defined below) to the other party and that party's Representatives whether before or after the Effective Date in connection with the agreement, including but not limited to:
a) the existence and terms of the agreement or any agreement or letter of intent entered into in connection with the agreement;
b) any information that would be regarded as confidential by a reasonable business person relating to:
i. the business, assets, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing party (or, where applicable, of any member of the group of companies to which a disclosing party might belong); and
ii. the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or, where applicable, of any member of the group of companies to which a disclosing party might belong);
c) any information developed by the parties while carrying out the agreement and the parties agree that:
i. details of the Service, and the results of any performance tests of the Service, shall constitute Supplier Confidential Information; and
ii. Customer Data shall constitute Customer Confidential Information;
d) any information detailed in the Mandatory Policies.
Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.
10.2 The provisions of this clause shall not apply to any Confidential Information that:
a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
c) was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or
d) the parties agree (in writing) may be disclosed.
10.3 Each party shall keep the other party's Confidential Information secret and confidential and shall not:
a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with the agreement (Permitted Purpose); or
b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 10.
10.4 A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
b) at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause.
10.5 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
10.6 A party may, if it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.
10.7 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in the agreement are granted to the other party, or to be implied from the agreement.
10.8 On termination or expiry of the Service, each party shall:
a) destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information;
b) erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage Service provided by third parties (to the extent technically and legally practicable); and
c) certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient party.
10.9 No party shall make, or permit any person to make, any public announcement concerning the agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
10.10 Except as expressly stated in the agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
10.11 The above provisions of this clause 10 shall survive for a period of two years from termination or expiry of the Service.
10.12 In performing their obligations under the agreement both parties shall comply with the Mandatory Policies.
11.1 You shall defend, indemnify and hold us harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the your (including your employees', agents', third party licensors’ and sub-contractors') use of the Service and/or Documentation, provided that:
a) you are given prompt notice of any such claim;
b) we provide reasonable co-operation to you in the defence and settlement of such claim, at your expense; and
c) you are given sole authority to defend or settle the claim.
11.2 We shall defend you, your officers, directors and employees against any claim that your use of the Service or Documentation in accordance with the agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:
- we are given prompt notice of any such claim;
- you do not make any admission, or otherwise attempt to compromise or settle the claim and you provide reasonable co-operation to us in the defence and settlement of such claim, at our expense; and
- we are given sole authority to defend or settle the claim.
11.3 In the defence or settlement of any claim we may procure the right for you to continue using the Service, replace or modify the Service so that it becomes non-infringing or, if such remedies are not reasonably available, terminate the agreement on two (2) Business Days' notice to you without any additional liability or obligation to pay liquidated damages or other additional costs to you.
11.4 In no event shall we, our employees, agents or sub-contractors be liable to you to the extent that the alleged infringement is based on:
a) a modification of the Service or Documentation by anyone other than us or our third party licensors; your use of the Service or Documentation in a manner contrary to the instructions given to you by us or our third party licensors; or
b) your use of the Service or Documentation after notice of the alleged or actual infringement us or any appropriate authority.
11.5 The foregoing and clause 13.3 (b) states your sole and exclusive rights and remedies, and our (including our employees', agents', third party licensors’ and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
11.6 You shall keep us indemnified against all liabilities suffered or incurred by us as a result of or in connection with any damage to the Service or Documentation which occurs as a result of our negligence in providing access to the Service or Documentation to a third party.
12 Limitation of liability
12.1 Except as expressly and specifically provided in the agreement:
a) you assume sole responsibility for results obtained from your use of the Service and the Documentation, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by you in connection with the Service, or any actions taken by us at your direction;
b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the agreement; and
c) the Service and the Documentation are provided to you on an "as is" basis.
12.2 Nothing in the agreement excludes our the liability:
a) for death or personal injury caused by our negligence; or
b) for fraud or fraudulent misrepresentation.
12.3 Subject to clause 12.1 and clause 12.2:
a) we shall not be liable whether in tort (including for breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the agreement; and
b) our total aggregate liability in contract (including in respect of the indemnity at clause 11.2), tort (including negligence or breach of statutory duty), breach of personal data, misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
12.4 Nothing in the agreement excludes your liability for any breach, infringement or misappropriation of the our Intellectual Property Rights.
13 Term and termination
13.1 The agreement shall, unless otherwise terminated as provided in this clause 13 commence on the Effective Date and shall continue for the Initial Term and, thereafter, the agreement shall be automatically renewed for successive periods of twelve (12) months (each a Renewal Period), unless:
a) either party notifies the other party of termination, in writing, at least sixty (60) days before the end of the Initial Term or any Renewal Period, in which case the agreement shall only then terminate upon the expiry of the applicable Initial Term or Renewal Period; or
b) otherwise terminated in accordance with the provisions of the agreement;
(and for clarification, if the notice period to terminate prior to any anniversary is missed by either party the agreement is automatically renewed for the full twelve (12) months and the full twelve months of Fees due under the Order Form are due and payable to us) and the Initial Term together with any subsequent Renewal Periods shall constitute the subscription Term.
13.2 Without affecting any other right or remedy available to us, including our right to receive the full Fees due to us, as set out in any Order Form/s for the balance of the Initial Term, or in the case of a Renewal Period the whole of the period renewed, either party may terminate the agreement with immediate effect by giving written notice to the other party if:
a) the other party fails to pay any amount due under the agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
b) the other party commits a material breach of any other term of the agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified to do so;
c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986 OR (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the IA 1986 OR (being a partnership) has any partner to whom any of the foregoing apply;
d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
e) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
h) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2 (c) to clause 13.2 (j) (inclusive);
l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
m) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the agreement is in jeopardy; or
n) you undergo a Change of Control.
13.3 On termination of the agreement for any reason:
a) all licences granted under the agreement shall immediately terminate and you shall immediately cease all use of the Service and/or the Documentation;
b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
c) we may destroy or otherwise dispose of any of the Customer Data in our possession unless we receive, no later than ten days after the effective date of the termination of the agreement, a written request for the delivery to you of the then most recent back-up of the Customer Data. We shall use reasonable commercial endeavours to deliver the back-up to you within 30 days of its receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by us in returning or disposing of Customer Data; and
d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
13.4 On termination of the agreement for any reason any provision that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the agreement, (such as confidentiality or data storage provisions) shall remain in full force and effect.
14 Force majeure
Neither party shall be in breach of the agreement nor liable for delay in performing, or failure to perform, any of its obligations under the agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for thirty (30) days the party not affected may terminate the agreement by giving a further seven days' written notice to the affected party.
We may vary the agreement from time to time and will give you notice of any such variation prior to the variation becoming effective.
16.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
16.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
17 Rights and remedies
Except as expressly provided in the agreement, the rights and remedies provided under the agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
18.1 If any provision or part-provision of the agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the agreement.
18.2 If any provision or part-provision of the agreement is deemed deleted under clause 18.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
19 Entire agreement
19.1 The agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
19.2 Each party acknowledges that in entering into the agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the agreement.
19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the agreement.
19.4 Nothing in this clause shall limit or exclude any liability for fraud.
20.1 You shall not, without our prior written consent, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under the agreement.
20.2 We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under the agreement.
21 No partnership or agency
Nothing in the agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
22 Third party rights
The agreement does not confer any rights on any person or party (other than the parties to this ;agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Any notice given to a party under or in connection with the agreement shall be in writing and shall be given in accordance with the Notice provisions set out in the Order Form. For the avoidance of doubt, unless specified otherwise, this shall be:
a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
b) sent by email to the addresses (or an address substituted in writing by the party to be served) as set out on the Software as a Service Order Form
23.2 Any notice shall be deemed to have been received:
a) if delivered by hand, at the time the notice is left at the proper address;
b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
c) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
23.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
24 Governing law
The agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the agreement or its subject matter or formation (including non-contractual disputes or claims).