Last updated: 2nd January 2024
YOUR USE OF THE FLOW MOBILE SOFTWARE AND OUR PROVISION OF ANY SERVICES TO YOU IS SUBJECT TO ACCEPTANCE OF THE TERMS AND CONDITIONS BELOW. BY REGISTERING WITH US AND/ REQUESTING US TO PROVIDE ANY SERVICES TO YOU, YOU DO SO ON THE BASIS THAT YOU ACCEPT AND AGREE THAT YOU ARE LEGALLY BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT OR AGREE TO THE TERMS YOU ARE NOT AUTHORISED TO USE THE FLOW MOBILE SOFTWARE AND WE SHALL HAVE NO OBLIGATION TO PROVIDE ANY SERVICES TO YOU.
THE AGREED TERMS
those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Subscription Services and the Documentation, as further described in clause 2.2.4.
a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
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.
these terms and conditions set out in clause 1 (Definitions and Interpretation) to Clause 27 (Governing Law and Jurisdiction) (inclusive).
information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 13.1.
the contract between the Customer and the Supplier for the supply of the Services in accordance with these Conditions which is formed when the Customer’s offer to purchase the Services, as indicated by the completion of self-service forms on the Software dashboard and payment in full of the Fees due and payable prior to commencement of the Services, is accepted by the Supplier upon by commencing the supply of the Services.
the organisation that has requested to receive the Services from the Supplier.
any information, branding, materials, content or data provided by the Customer or inputted by the Customer, Authorised Users, or the Supplier on the Customer's behalf to facilitate the provision of the Services or to facilitate the Customer's use of the Subscription Services.
the fees payable by the Customer to the Supplier for the Customisation Services, as agreed in writing by the Supplier and the Customer.
those development and/or customisation services agreed in writing by the Supplier and the Customer.
Data Protection Legislation
a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data
b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Customer or Supplier is subject, which relates to the protection of personal data.
any output of the Services to be provided by the Supplier to the Customer as agreed in writing by the Supplier and the Customer and any other documents, products and materials provided by the Supplier to the Customer in relation to the Services (excluding the Supplier's Equipment).
the user instructions for the Subscription Services provided by the Supplier from time to time.
the date on which the Supplier commences supply of the Services under the Contract.
the Subscription Fees, the Customisation Fees and the Support Fees.
Normal Business Hours
9.00 am to 5.00 pm local UK time, each Business Day.
Standard Contractual Clauses in the form then currently approved by the applicable data protection Supervisory Authority.
the Customisation Services, Subscription Services and/or Support Services to be provided by the Supplier to the Customer
the online software applications access to which is provided by the Supplier as part of the Subscription Services including any modifications, amendments additional features and further version developed by the Supplier from time to time.
the fees payable by the Customer to the Supplier for the Subscription Services, as agreed by the Supplier and the Customer.
the provision of access to the Software as agreed in writing by the Supplier and the Customer.
Flow Software Solutions Limited incorporated and registered in England and Wales with company number 12025693 whose registered office is at 60 Rothbury Terrace, Heaton, Newcastle Upon Tyne, United Kingdom, NE6 5XJ.
the fees payable by the Customer to the Supplier for the Support Services as agreed in writing by the Supplier and the Customer.
the support services agreed in writing by the Supplier and the Customer.
the user subscriptions purchased by the Customer pursuant to clause 10.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with these Conditions.
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.
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.
1.1 Clause headings shall not affect the interpretation of the Contract.
1.2 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.5 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract.
1.6 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision.
1.7 A reference to writing or written excludes fax but not email.
1.8 References to clauses are to the clauses of the Contract.
2.1 Subject to the Customer purchasing the Subscription Services in accordance with these Conditions, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to use the Software and the Documentation accessed via the Subscription Services during the Subscription Term solely for the Customer's internal business operations.
2.2 In relation to the Authorised Users, the Customer undertakes that:
2.2.1 the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
2.2.2 it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
2.2.3 each Authorised User shall keep a secure password for their use of the Services and Documentation, that such password shall be changed no less frequently than one month and that each Authorised User shall keep their password confidential;
2.2.4 it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier's written request at any time or times;
2.2.5 it shall permit the Supplier or the Supplier's designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Customer's data processing facilities to audit compliance with these Conditions. Each such audit may be conducted no more than once per quarter, at the Supplier's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
2.2.6 if any of the audits referred to in clause 2.2.5 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier's other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
2.2.7 if any of the audits referred to in clause 2.2.5 reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier's other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the Supplier’s standard prices for subscriptions at that time within 10 Business Days of the date of the relevant audit.
2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Subscription Services that:
2.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.3.2 facilitates illegal activity;
2.3.3 depicts sexually explicit images;
2.3.4 promotes unlawful violence;
2.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
2.3.6 is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.
2.4 The Customer shall not:
2.4.1 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 these Conditions:
184.108.40.206 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Deliverables, Software, and/or Documentation (as applicable) in any form or media or by any means; or
220.127.116.11 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or the Deliverables; or
2.4.2 access all or any part of the Deliverables, Software, Services or Documentation in order to build a product or service which competes with the Deliverables, Software, Services and/or the Documentation; or
2.4.3 use the Deliverables, Services and/or the Documentation to provide services to third parties; or
2.4.4 subject to clause 23.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software, Services and/or Documentation available to any third party except the Authorised Users, or
2.4.5 introduce or permit the introduction of, any Virus or Vulnerability into the Supplier's network and information systems.
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Deliverables, Software, Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
2.6 The rights provided under this clause 2 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.
3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number previously agreed by the Supplier and the Customer and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of these Conditions.
3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall complete the self-service forms on the Customer’s Software dashboard and make the relevant payment for the additional User Subscriptions in accordance with clause 3.3 and the Subscription Fees shall be adjusted accordingly .
3.3 Once payment for the additional User Subscriptions has been received by the Supplier pursuant to clause 3.2, the Supplier will activate the additional User Subscriptions purchased. If such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term (as defined at clause 16.1) or any Renewal Period (as applicable) (as defined at clause 16.1), the additional Subscription Fees payable shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Subscription Term or the current Renewal Period (as applicable).
3.4 The Supplier shall, during the Subscription Term, provide the Subscription Services and make available the Documentation to the Customer on and subject to these Conditions.
3.5 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
3.5.1 planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
3.5.2 unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours' notice in advance.
4.1 The Supplier will, in consideration of the Support Fees provide the Customer with the Support Services during Normal Business Hours in accordance with the Supplier's Support Services policy in effect at the time that the Services are provided. The Supplier may amend the Support Services policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Supplier's then current rates.
5.1 The Supplier will, in consideration of the Customisation Fees use its reasonable endeavours to provide the Customer with the Customisation Services in accordance with any specification or scope of works and any timetable for delivery agreed between the Supplier and the Customer.
6.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 6 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
6.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Supplier is the Processor.
6.3 Without prejudice to the generality of clause 6.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier and lawful collection of the Personal Data by the Supplier on behalf of the Customer for the duration and purposes of the Contract.
6.4 Without prejudice to the generality of clause 6.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
6.4.1 process that Personal Data only on the documented written instructions of the Customer unless the Supplier is required by Domestic Law to otherwise process that Personal Data. Where the Supplier is relying on Domestic Law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits the Supplier from so notifying the Customer;
6.4.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
6.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
6.4.4 not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
18.104.22.168 the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
22.214.171.124 the data subject has enforceable rights and effective legal remedies;
126.96.36.199 the parties comply with their obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
188.8.131.52 the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
6.4.5 assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
6.4.6 notify the Customer without undue delay on becoming aware of a Personal Data Breach;
6.4.7 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Domestic Law to store the Personal Data; and
6.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 6.
6.5 The Customer consents to the Supplier appointing a third-party as a processor of Personal Data under the Contract. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 6 and in either case which the Supplier confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 6.
6.6 The Supplier must not transfer or otherwise process the Personal Data outside the EEA without obtaining the Customer’s prior written consent.
6.7 Where such consent is granted, the Supplier may only process, or permit the processing, of the Personal Data outside the EEA under the following conditions:
6.7.1 the Supplier is processing the Personal Data in a territory which is subject to adequacy regulations under the Data Protection Legislation that the territory provides adequate protection for the privacy rights of individuals. The Customer must identify the territory that is subject to such adequacy regulations; or
6.7.2 the Supplier participates in a valid cross-border transfer mechanism under the Data Protection Legislation, so that the Supplier (and, where appropriate, the Customer) can ensure that appropriate safeguards are in place to ensure an adequate level of protection with respect to the privacy rights of individuals as required by Article 46 of the UK GDPR. The Supplier must identify the transfer mechanism that enables the parties to comply with these cross-border data transfer provisions and the Supplier must immediately inform the Customer of any change to that status; or
6.7.3 the transfer otherwise complies with the Data Protection Legislation.
6.8 If any Personal Data transfer by Supplier requires execution of SCCs in order to comply with the Data Protection Legislation (where the Supplier is the entity exporting Personal Data to outside the EEA), the Customer and Supplier will complete all relevant details in, and execute, the SCCs, and take all other actions required to legitimise the transfer.
7.1 The Supplier warrants that the Services will be performed with reasonable skill and care and substantially in accordance with any specification agreed between the parties for the same.
7.2 The warranty at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services or Deliverables contrary to the Supplier's instructions, the Documentation or the terms of the Contract, or modification or alteration of the Services or the Deliverables by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing warranty, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance, subject to the Customer notifying the Supplier promptly. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the warranty set out in clause 7.1.
7.3 The Supplier:
7.3.1 does not warrant that:
184.108.40.206 the Supplier’s provision of or the Customer's use of the Services will be uninterrupted, error or bug free; or
220.127.116.11 that the Services, Software, Deliverables, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; or
18.104.22.168 the Software, Deliverables or the Services will be free from Vulnerabilities or Viruses, bugs or errors.
7.3.2 is 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 the Customer acknowledges that the Subscription Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4 The Contract shall not prevent the Supplier from entering into similar agreements with third parties, or from developing, using, selling, supplying or licensing documentation, templates, deliverables software products and/or services which are the same or similar to those provided under the Contract.
8.1 The Customer shall:
8.1.1 provide the Supplier with:
22.214.171.124 all necessary co-operation in relation to the Contract; and
126.96.36.199 all necessary access to such information as may be required by the Supplier;
in order to provide the Services, including but not limited to Customer Materials, security access information and configuration services;
8.1.2 notify the Supplier promptly of any non-conformance in respect of the Services.
8.1.3 without affecting its other obligations under the Contract, comply with all applicable laws and regulations with respect to its activities under the Contract;
8.1.4 carry out all other Customer responsibilities set out in these Conditions in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.5 ensure that the Authorised Users use the Services and the Documentation in accordance with these Conditions and shall be responsible for any Authorised User's breach of the Contract;
8.1.6 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under these Conditions, including without limitation the Services including but not limited to any intellectual property licences or consents in respect of the Customer Materials;
8.1.7 ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time;
8.1.8 be, to the extent permitted by law and except as otherwise expressly provided in these Conditions, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet; and
8.1.9 ensure that appropriate access controls and permissions are configured for the Subscription Services to restrict access only to Authorised Users.
8.2 The Customer shall own all right, title and interest in and to all of the Customer Materials that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Materials.
9.1 The Supplier shall use commercially reasonable efforts to take regular backups of the Customer data stored within the Software using third party cloud-based backup services. Such backups are intended to allow for the restoration of such Customer data in the event of a catastrophic loss of such Customer data on the Supplier's systems. Notwithstanding the foregoing, the Customer acknowledges that it is solely responsible for maintaining separate backups of all of its Customer data, including but not limited to backups of jobs, reports, and any other Customer data.
9.2 In the event the Supplier is requested to restore Customer data from backup, the Supplier makes no guarantees or warranties regarding the timelines for completing such restoration or the completeness or accuracy of restored Customer data. The Supplier shall, to the extent permitted in law, have no liability for any damages, losses, costs or expenses arising out of or related to the unavailability of backup data or any failure to completely or accurately restore Customer data from backup.
10.1 The Customer shall pay the Subscription Fees for the Initial Subscription Term and each subsequent Renewal Term to the Supplier in accordance with this clause 10 by credit or debit card or direct debit in advance of receipt of the Subscription Services for that period.
10.2 The Customer shall pay all Fees other than the Subscription fees within 7 days of receipt of the Supplier’s invoice for the same.
10.3 The Supplier shall make reasonable efforts to provide the Customer with precise cost estimates before the commencement of any Customisation Services but the Customer acknowledges and agrees that owing to the intricate nature and unforeseeable variables associated with customisation and development work these estimates are not fixed costs and may vary as the Customisation Services progress. The Supplier shall notify the Customer in writing in advance of carrying out any further Customisation Services if any Customisation Fees are expected to materially differ from those agreed in writing between the Customer and Supplier at that time.
10.4 If the Supplier has not received payment for any Fees on the due date and without prejudice to any other rights and remedies of the Supplier:
10.4.1 the Supplier may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Subscription Services;
10.4.2 the Supplier may, without liability to the Customer, suspend provision of all or any of the Services; and
10.4.3 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% 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.
10.5 All amounts and fees stated or referred to in these Conditions:
10.5.1 shall be payable in pounds sterling;
10.5.2 are, subject to clause 15.3.2, non-cancellable and non-refundable;
10.5.3 are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.
10.6 The Supplier may from time to time, in its sole and absolute discretion and on 30 days’ notice in writing to the Customer, apply a data storage and/or other fair usage limits on the Customer’s use of the Subscription Services and impose excess storage or usage fees for additional usage beyond the limit applied.
10.7 The Supplier shall be entitled to alter or increase the Subscription Fees, the fees payable in respect of any additional User Subscriptions, the Support Fees and/or the excess storage fees payable pursuant to clause 10.6 and/or implement new pricing models or tiers at any time upon 30 days' prior notice to the Customer and such fees shall be deemed to have been amended accordingly on expiry of such 30 day period.
11.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights arising out of the provision of the Services or subsisting in the Deliverables, Services, Software, and the Documentation. Except as expressly stated herein, the Contract does not grant the Customer 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 Deliverables, Services, Software and the Documentation.
12.1 A Customer may suggest to the Supplier new or enhanced features for the Software or the Subscription Services, Templates or Deliverables, but the Supplier shall have no obligation to develop or incorporate such features.
12.2 The Supplier reserves the right to make any changes to the Software to improve it for its users as a whole, even if such changes may negatively affect the Customer or its Authorised Users.
13.1 Confidential Information means any information that would be regarded as confidential by a reasonable business person relating to:
13.1.1 the business, assets, affairs, customers, clients, suppliers, or plans , intentions, or market opportunities of the disclosing party; and
13.1.2 the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party.
13.2 The provisions of this clause shall not apply to any Confidential Information that:
13.2.1 is or becomes generally available to the public (other than as a result of its disclosure by the receiving party in breach of this clause);
13.2.2 was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
13.2.3 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
13.2.4 the parties agree in writing is not confidential or may be disclosed; or
13.3 Each party shall keep the other party's Confidential Information secret and confidential and shall not:
13.3.1 use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with the Contract (Permitted Purpose); or
13.3.2 disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 13.
13.4 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 (including, without limitation, 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.
13.5 On termination or expiry of the Contract, subject to clause 13.6, each party shall:
13.5.1 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;
13.5.2 erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
13.5.3 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, subject to clause 16 (Termination).
13.6 The Supplier is under no obligation to retain Customer Materials that are held within the Software upon termination or expiry of the Contract but reserves the right to retain a copy of such Customer data on termination or upon expiry of the Contract subject to any relevant Data Protection Legislation.
13.7 The above provisions of this clause 13 shall continue to apply after termination or expiry of the Contract.
14.1 The Customer shall defend, shall indemnify and hold harmless the Supplier for any 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 Supplier's use of the Customer Materials including any claim or allegation that the Supplier's use of the Customer Materials in accordance with these Conditions infringes any intellectual property right, right of confidentiality or any other right of any third party provided that:
14.1.1 the Customer is given prompt notice of any such claim;
14.1.2 the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
14.1.3 the Customer is given sole authority to defend or settle the claim.
15.1 Except as expressly and specifically provided in these Conditions:
15.1.1 the Customer assumes sole responsibility for results obtained from the use of the Services, Deliverables and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or in any Customer Materials or any actions taken by the Supplier at the Customer's direction or request;
15.1.2 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 Contract; and
15.1.3 the Services, Deliverables and the Documentation are provided to the Customer on an "as is" basis.
15.2 Nothing in these Conditions excludes or limits the liability of the Supplier:
15.2.1 for death or personal injury caused by the Supplier's negligence; or
15.2.2 for fraud or fraudulent misrepresentation.
15.3 Subject to clause 15.1 and clause 15.2:
15.3.1 the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, wasted expenditure, 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 Contract including but not limited to in relation to the Customer’s business or the business of any of the Customer’s clients, whether or not such liability if foreseeable or has been advised of the possibility of such damages; and
15.3.2 the Supplier's total aggregate liability in contract (including in respect of the indemnity at clause 14), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract 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.
15.4 The Supplier does not warrant, represent or provide any assurance that any delivery or supply dates for the provision of any of the Services or the Deliverables shall be met and all such dates are estimates only and time shall not be of the essence for such dates.
15.5 The Supplier does not warrant, represent or provide any assurance that any suggested, requested or planned features will be developed. The development of such features is entirely at the sole discretion of the Supplier. The Supplier's decision to develop or not to develop such features shall be based on factors determined only by the Supplier, which may change from time to time. The Supplier shall have no liability for any loss or damage suffered by the Customer arising out of decisions made or actions taken by the Customer based on requested or planned future features.
15.6 Nothing in these Conditions excludes or limits the liability of the Customer for any breach, infringement or misappropriation of the Supplier’s intellectual property rights.
16.1 The Services shall, unless otherwise terminated as provided in these Conditions, commence on the Effective Date and shall continue for a period of one calendar month (Initial Subscription Term) and, thereafter, shall be automatically renewed for successive periods of one calendar month (each a Renewal Period), unless either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case the provision of the Subscription Services shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
16.2 In the event that the Supplier is providing Customisation Services to the Customer under these Conditions, and the Customer provides notice of termination in accordance with clause 16.1, the Supplier shall be entitled to payment from the Customer for the Customisation work completed up to the effective date of notice and the same shall be payable by the Customer within 7 days of the effective date of notice.
16.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
16.3.1 the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
16.3.2 the Customer commits a material breach of any other term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
16.3.3 the Customer 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;
16.3.4 the Customer 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;
16.3.5 the Customer applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
16.3.6 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;
16.3.7 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 Customer (being a company, partnership or limited liability partnership);
16.3.8 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;
16.3.9 a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
16.3.10 a creditor or encumbrancer of the Customer 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 Customer's assets and such attachment or process is not discharged within 14 days;
16.3.11 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this clause 16.2 (inclusive);
16.3.12 the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
16.3.13 the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
16.4 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Supplier:
16.4.1 reasonably believes that the Customer has engaged in unfair or unauthorised usage of the Services; or
16.4.2 obtains evidence of or reasonably suspects licence sharing or unauthorised distribution of the Software or the Deliverables; or
16.4.3 reasonably believes that the Customer has engaged in the misuse or unauthorised alteration of the Software, including but not limited to reverse engineering, tampering, or modifications without proper authorisation; or
16.4.4 if the Supplier reasonably believes that there is a fundamental misalignment of values or objectives between the Supplier and the Customer, which substantially hinders the effective provision of the Services.
16.5 On termination of the Contract for any reason:
16.5.1 all licences granted under these Conditions shall immediately terminate and the Customer shall immediately cease all use of the Services, the Deliverables and/or the Documentation;
16.5.2 subject to clause 13.5 and 13.6, 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;
16.5.3 subject to clause 13.6, the Supplier may destroy or otherwise dispose of any of the Customer Materials in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of the Contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Materials. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer as soon as practicable for the Supplier on receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Materials; and
16.5.4 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 Contract which existed at or before the date of termination shall not be affected or prejudiced.
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results 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 6 weeks, the party not affected may terminate the Contract by giving 30 days' written notice to the affected party.
No variation of the Contract or these Conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19.1 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.
19.2 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.
Except as expressly provided in these Conditions, the rights and remedies provided under these Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
21.1 If any provision or part-provision of the Contract 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 Contract.
21.2 If any provision or part-provision of the Contract is deemed deleted under clause 21.1 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.
22.1 The Contract 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.
22.2 Each party acknowledges that in entering into the Contract 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 these Conditions.
22.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Conditions.
22.4 Nothing in these Conditions shall limit or exclude any liability for fraud.
23.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
23.2 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract, provided that it gives prior written notice of such dealing to the Customer.
Nothing in these Conditions 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).
25.1 The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
25.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
26.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
26.1.1 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
26.1.2 sent by email to the following:
188.8.131.52 Notice to Supplier: firstname.lastname@example.org;
184.108.40.206 Notice to Customer: the email address provided by the Customer for such purposes.
26.2 Any notice shall be deemed to have been received:
26.2.1 if delivered by hand, at the time the notice is left at the proper address;
26.2.2 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
26.2.3 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.
26.3 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.
27.1 The Contract 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.
27.2 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 Contract or its subject matter or formation (including non-contractual disputes or claims).c