TERMS AND CONDITIONS OF SERVICE

Fonn Ltd is a company incorporated in England and Wales with company number 12312957 whose registered office is 2 Frederick Street, Kings Cross. London, WC1 0ND and FONN AS is a company incorporated in Norway with company number 917 725 454 and whose registered office is Brugata 6, 5200, Os, Norway and references to “we”, “us”, and “our” in these Terms and Conditions of Service should be read as references to FONN Ltd  and 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 our “Service”).

These Terms and Conditions of Service (including any supplementary sheet/s or Addendum) 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, the Order Form and any supplemental sheet/s or Addendum added by variation by the parties,  a term contained in a document higher in the list shall have priority over one contained in a document lower in the list (unless expressly agreed otherwise by the parties in writing).

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 agreement 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 agreement. 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 agreement. 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 Service.

"Authorised User(s)”: those employees, agents and independent contractors of the Customer and its Subsidiaries being located in the UK, who are authorised by the Customer to use the Services and the Documentation.

“Availability” means the state of the Service when the Customer is able to access and utilise all functions of the Service without hindrance or fault in accordance with the terms of this agreement (and for the avoidance of doubt during any period of Excusable Downtime the Service shall be deemed “Available”).

“Business Day” means a day that is not a Saturday, Sunday or public holiday in England when banks in England are open for business.

“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 into the platform 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.

"Cybersecurity Requirements": any English 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, (all as amended or updated from time to time).

“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 but not limited to:

1. the Data Protection Act 2018 (and regulations made hereunder);
2. the UK GDPR which has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018;
3. to the extent the EU GDPR (General Data Protection Regulation (EU) 2016/679) (or any member state of the EU to which the Customer is subject) applies which relates to the protection of Personal Data;
4. the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as may be amended by the proposed Regulation on Privacy and Electronic Communications);
5. any guidance and codes of practice issued by the Information Commissioner Office or other relevant regulatory UK authority which is applicable to a party;
6. (any other applicable law relating to the processing, privacy and/or use of Personal Data;
7. any laws which implement any such laws; and
8. any laws that replace, extend, re-enact, consolidate or amend any of the foregoing.

Data Controller, Data Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures:  as defined in the Data Protection Laws.

"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. 

“Excusable Downtime”:  shall be any period of time during the Term of this agreement in which the Service is not Available but which:

1. is of an aggregate total of thirty (30) minutes in any ten (10) Business Day period necessary to conduct regular software and hardware updates to the platform, including bug fixes and patches;
2. occurs in the first thirty (30) minutes of any unscheduled emergency maintenance and or force majeure event during Business Days; and
3. as a result of a critical security breach.

“GDPR”: means the EU General Data Protection Regulation, Regulation (EU) 2016/679 as it forms part of domestic law in the United Kingdom.

“Incident” means any Vulnerability, Virus or security incident which (i) may affect the Services; (ii) may affect our network and information systems, such that it could potentially affect the Customer or the Services; or (iii) is reported to us by the Customer.

“Initial Term": the initial subscription term of the agreement as set out in the Order Form.

"Mandatory Policies": the business or data protection policies developed by us listed below and that are available for review on our website and our platform, as amended from time to time.

1) Modern Slavery and Human Trafficking Policy

2) Privacy Notice

3) Ethics and Anti-Bribery Policy

4) Cybersecurity, Business Continuity and Disaster Recovery Policy

5) Data Processing Agreement

"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).

“Usage Data”: means such data or information as we may collect relating to your installation, access or use of the Software, Software features and functionality, Services and other Supplier services.

"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:

1. 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;
2. 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;
3. 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;
4. you shall permit us to audit the Service within Business Hours in order to establish the name and password of each Authorised User and your Personal 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;
5. 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
6. 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.

2.3 You shall not access, store, distribute or transmit any Viruses, or any material during the course of your use of the Service that:

1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; 
2. facilitates illegal activity;
3. depicts sexually explicit images;
4. promotes unlawful violence;
5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
6. 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:

1. 1. 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
   2. 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 services 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 Service

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 Subject to Excusable Downtime, 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

4.1 Both parties shall comply with all applicable requirements of the Data Protection Laws. This clause 4.1 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Laws.

(a) The parties acknowledge that:

1. if we process any Personal Data on your behalf when performing our obligations under this agreement, you are the Data Controller and we are the Data Processor for the purposes of the Data Protection Laws.
2. Schedule 1 sets out the scope, nature and purpose of processing by us, the duration of the processing and the types of Personal Data and categories of Data Subject.
3. subject to clause 4.3, the Personal Data may be transferred or stored outside the EEA or the country where you and the Authorised Users are located in order to carry out the Services and our other obligations under this agreement.

4.2 Without prejudice to the generality of clause 4.1 you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to us for the duration and purposes of this agreement so that we may lawfully use, process and transfer the Personal Data in accordance with this agreement on your behalf.

4.3 Without prejudice to the generality of clause 4.1, we shall, in relation to any Personal Data processed in connection with the performance by us of our obligations under this agreement:

1. process that Personal Data only on your written instructions unless required by the Data Protection Laws to process Personal Data. Where we are relying on Data Protection Laws as the basis for processing Personal Data, we shall promptly notify you of this before performing the processing required by the Data Protection Laws unless those Data Protection Laws prohibit us from so notifying you;
2. not transfer any Personal Data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
   1. you have and/or we have provided appropriate safeguards in relation to the transfer;
   2. the Data Subject has enforceable rights and effective legal remedies;
   3. we comply with our obligations under the Data Protection Laws by providing an adequate level of protection to any Personal Data that is transferred; and
   4. we comply with reasonable instructions notified to us in advance by you with respect to the processing of the Personal Data;
3. assist you, at your cost, in responding to any request from a Data Subject and in ensuring compliance with your obligations under the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators.
4. notify you without undue delay on becoming aware of a Personal Data Breach;
5. at your written direction, delete or return Personal Data and copies thereof to you on termination of the agreement unless required by Data Protection Laws to store the Personal Data; and
6. maintain complete and accurate records and information to demonstrate its compliance with this clause 4.

4.4 Each party shall ensure that it has in place appropriate technical and organisational measures, 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 (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it.

4.5 You consent to us appointing third-party processors of Personal Data under this agreement. We confirm that we have 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 4. As between you and us, we shall remain fully liable for all acts or omissions of any third-party processor appointed by us pursuant to this clause 4.

4.6 We may, at any time on not less than 30 days' notice, revise this clause 4 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).

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 but that if you, or your Authorised Users should do so, then it is solely at your own risk. 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 recommend that you (or any Authorised User) refer to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. We do not endorse nor approve any third-party website nor the content of any third-party website made available 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.

6.3 We:

(a) do not warrant, accept any liability (to the fullest extent permitted by applicable law) or otherwise commit that:

1. your use of the Service will be uninterrupted or error-free;
2. that the Service, Documentation and/or the information obtained by you through the Service will meet your requirements;
3. the Software or the Service will be free from Vulnerabilities or Viruses; or
4. the Software, Documentation or Service will comply with any Cybersecurity Requirements; 

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 this 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 this 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

You shall:

(a) provide us with:

1. all necessary co-operation in relation to this agreement; and
2. 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 your other obligations under this agreement, comply with all applicable laws and regulations with respect to your activities under this agreement;

(c) carry out all other responsibilities set out under this 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 agreed 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 this agreement and shall be responsible for any Authorised User's breach of this agreement including responsibility for any loss, destruction, alteration, or disclosure of Customer Data caused by any third party or 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 this 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 this agreement, solely responsible for procuring, maintaining and securing your network connections and telecommunications links from your systems to the data centres where we host the Service from time to time, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to 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  any support fees payable  in accordance with the agreement.

8.2 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) approved purchase order information to us, (if by credit card then you hereby authorise us to bill such credit card) and we shall invoice you:

1. on the Effective Date for the Subscription Fees payable in respect of the Initial Term; and
2. 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
3. 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.

8.3 If we have not received payment on the due date we shall inform you of such overdue invoice. If such overdue invoice remains unpaid for a further ten (10) Business Days following our notification to you, 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 clauses 8.1 & 8.2 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 eight (8)% 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.

8.4 All amounts and fees stated or referred to in the agreement:

1. shall be payable in pounds sterling;
2. are, subject to clause 12.3 (b) below, non-cancellable and non-refundable;
3. are exclusive of value added tax, which shall be added to our invoice(s) at the appropriate rate.

8.5 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 Documentation, 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.

8.6 We shall be entitled to increase the Subscription Fees, according to the Customer Turnover (being gross sales for the preceding twelve month period), and/or (where agreed and applicable to you) excess data storage fees or support service 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.

8.7 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 8.7.

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.

9.3 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.

9.4 You agree and acknowledge that we will from time to time collect Usage Data and that all Usage Data shall be owned by us and deemed our intellectual property.

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:

1. 1. 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
   2. 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:

1. details of the Service, and the results of any performance tests of the Service, shall constitute Supplier Confidential Information; and 
2. 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 Indemnities

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 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 Subject to clause 11.4, 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:

(a) we are given prompt notice of any such claim;

(b) 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

(c) 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 this 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; or

(b) 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

(c) your use of the Service or Documentation after notice of the alleged or actual infringement from us or any appropriate authority.

11.5 The foregoing and clause 12.3b) 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 your 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 this 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 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 profit (actual or anticipated, direct or indirect), loss of business and business interruption, loss of revenue, loss of contract, depletion of goodwill and/or similar losses or loss,  damage 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 All references to us in this clause 12 shall, for the purposes of this clause, be treated as including all of our employees, subcontractors and suppliers and our affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause.

12.5 Nothing in the agreement excludes your liability for any breach, infringement or misappropriation of 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;

(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 our 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.

15 Variation

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 Waiver

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 Severance

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 Assignment

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.

23 Notices

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.

25 Jurisdiction

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)