1.1. The definitions and rules of interpretation in this clause apply in these terms.
- Authorised Users
- means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 2.2.4.
- Business Day
- means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
- Change of Control
- means shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
- Confidential Information
- means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.6 or clause 11.7.
- means the person or business who purchases the Services from the Supplier.
- Customer Data
- means the data inputted by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services including blog posts of the Customer posted on the Customers website.
- Data Protection Legislation
- means up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter:
(a) unless and until the General Data Protection Regulation ((EU) 2016/679) (GDPR) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK; and then
(b) any successor legislation to the GDPR or the Data Protection Act 1998.
- means the document made available to the Customer by the Supplier online via https://missinglettr.com/ or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
- Effective Date
- means the first date of the Initial Subscription Term.
- Initial Subscription Term
- means the initial term of these terms as set out in the Order.
- Mandatory Policies
- means the Supplier's business policies and codes found at https://missinglettr.com/legal/, as amended by notification to the Customer from time to time.
- Normal Business Hours
- means 9.00 am to 6.00 pm local UK time, each Business Day.
- means an order for the Services submitted by the Customer.
- Renewal Period
- means the period described in clause 14.1.
- means the subscription services provided by the Supplier to the Customer under these terms via the Software accessed through https://missinglettr.com/ or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation.
- means the online software applications provided by the Supplier as part of the Services.
- Subscription Fees
- means the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as made available at https://missinglettr.com/pricing/.
- Subscription Term
- means has the meaning given in clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
- means MissingLettr Ltd registered at 28 Carnoustie, Bracknell, England, RG12 8ZW under company number 10516486.
- Third Party Processors
- includes the following but are not limited to Intercom (https://www.intercom.com), Canny (https://canny.io), Mailchimp (https://mailchimp.com), Facebook (https://facebook.com), Profit well (https://profitwell.com), Stripe (https://stripe.com) and Amazon Web Services (https://aws.amazon.com).
- Third Party Social Sites
- means the third party social sites used by the Supplier on behalf of the Customer including but not limited to Facebook, LinkedIn, Google+, Medium and Twitter.
- User Subscriptions
- means the user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with these terms.
- means 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.
1.2. Clause and paragraph headings shall not affect the interpretation of these terms.
1.3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of these terms.
1.8. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of these terms under that statute or statutory provision.
1.9. A reference to writing or written includes e-mail unless otherwise stated.
1.10. References to clauses are to the clauses of these terms.
2. User subscriptions
2.1. Subject to the Customer purchasing the User Subscriptions in accordance with clause 3.3 and clause 9.1, the restrictions set out in this clause 2 and the other terms and conditions of these terms, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation 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 his use of the Services and Documentation, that such password shall be changed no less frequently than monthly and that each Authorised User shall keep his 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 Supplier's data processing facilities to audit compliance with these terms. 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 prices set out at https://missinglettr.com/pricing/ 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 including Customer Data, during the course of its use of the 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. The Supplier is not obliged to remove or recognise such content contained in any material or Customer Data and the Customer shall be fully liable for the same.
2.4. The Customer shall be responsible for ensuring that content of the Customer Data is satisfactory for publication to Third Party Social Sites and is in compliance with clause 2.3 above.
2.5. The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with publication of the Customer Data.
2.6. The Customer shall not:
2.6.1. 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 terms:
220.127.116.11. 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
18.104.22.168. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
2.6.2. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
2.6.3. use the Software, Services and/or Documentation to provide services to third parties; or
2.6.4. subject to clause 21.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
2.6.5. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; and
2.7. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
2.8. 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. Additional user subscriptions
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 set out at https://missinglettr.com/pricing/ and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of these terms.
3.2. If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld). Where the Supplier approves the request, the Supplier shall activate the additional User Subscriptions within 10 days of its approval of the Customer's request.
3.3. If the Supplier approves the Customer's request to purchase additional User Subscriptions, the Customer shall pay to the Supplier the relevant fees for such additional User Subscriptions as set out at https://missinglettr.com/pricing/ and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
4.1. The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of these terms.
4.2. The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
4.2.1. planned maintenance carried out during the maintenance window of 12.00 pm to 6.00 am UK time on Monday to Friday and 8.00 am to 1.00 pm UK time on Saturday and Sunday; and
4.2.2. unscheduled maintenance performed due to emergencies, including but not limited to distributed denial of service attacks, general performance issues and connectivity issues, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours' notice in advance.
4.3. The Supplier shall not be held liable for any loss due to maintenance stated in clause 4.2.1 and clause 4.2.2 above. The Customer indemnifies the Supplier against any loss or liability in relation to the maintenance.
4.4. The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier's standard customer support services during Normal Business Hours. The Supplier will aim to reply within 24 hours of receiving the support request, however this is not guaranteed. The Supplier will reasonably endeavor to address the issue, however it cannot be guaranteed that the issue will be resolved. The Customer may purchase enhanced support services separately at the Supplier's then current rates by contacting email@example.com.
5. Customer data
5.1. The Customer 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.
5.2. The Supplier shall follow its archiving procedures for Customer Data as set out in its Data Retention Policy available at https://missinglettr.com/legal/data-retention/ or such other website address as may be notified to the Customer from time to time], as such document may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its [Back-Up Policy]. The Supplier 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 the Supplier to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable under clause 5.9).
5.4. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
5.5. The parties acknowledge that:
5.5.1. if the Supplier processes any personal data on the Customer's behalf contained in Customer Data, materials or otherwise, when performing its obligations under these terms, the Customer is the data controller and the Supplier is the data processor for the purposes of the Data Protection Legislation (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
5.5.2. The Supplier shall be the data controller of personal data of the Customer contained in the Order.
5.5.4. the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier's other obligations under these terms.
5.6. Without prejudice to the generality of clause 5.4, 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 for the duration and purposes of these terms so that the Supplier may lawfully use, process and transfer the Personal Data in accordance with these terms on the Customer's behalf.
5.7. Without prejudice to the generality of clause 5.4, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under these terms:
5.7.1. process that Personal Data only on the written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (Applicable Laws). Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
5.7.2. not transfer any Personal Data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
22.214.171.124. the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
126.96.36.199. the data subject has enforceable rights and effective legal remedies;
188.8.131.52. the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
184.108.40.206. the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
5.7.3. 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;
5.7.4. notify the Customer without undue delay on becoming aware of a Personal Data breach;
5.7.5. at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
5.7.6. maintain complete and accurate records and information to demonstrate its compliance with this clause 5.
5.8. Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, 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).
5.9. The Customer consents to the Supplier appointing Third Party Processors as a third-party processors of Personal Data under this agreement. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party's standard terms of business. 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 5.
5.10. Either party may, at any time on not less than 30 days' notice, revise this clause 5 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 these terms).
6. Third party providers
6.1. For customers integrating their YouTube account, further details regarding their own terms of service, as well as instructions to disconnect Missinglettr as an authorised application can be found on their Terms of Service and the Google Security Setting page.
7. Supplier's obligations
7.1. The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2. The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents, or by virtue of the content of the Customer Data. If the Services do not conform with the foregoing undertaking, 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. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, the Supplier:
7.2.1. does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
7.2.2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data, including Customer Data over communications networks and facilities, and to Third Party Social Sites including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities and Third Party Social Sites.
7.3. These terms shall not prevent the Supplier 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 those provided under these terms.
7.4. The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these terms.
8. Customer's obligations
8.1. The Customer shall:
8.1.1. provide the Supplier with:
220.127.116.11. all necessary co-operation in relation to these terms;
18.104.22.168. all necessary access to such information as may be required by the Supplier; and
22.214.171.124. access to Third Party Social Sites. in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
8.1.2. without affecting its other obligations under these terms, comply with all applicable laws and regulations with respect to its activities under these terms;
8.1.3. carry out all other Customer responsibilities set out in these terms 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;
8.1.4. ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of these terms and shall be responsible for any Authorised User's breach of these terms;
8.1.5. obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under these terms, including without limitation the Services;
8.1.6. ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
8.1.7. be solely responsible for procuring and maintaining 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.
9. Charges and payment
9.1. The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause 9 and the information found at https://missinglettr.com/pricing/.
9.2. The Customer shall on the Effective Date or such other date as specified on the Order, provide to the Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
9.2.1. its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card:
126.96.36.199. on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
188.8.131.52. subject to clause 14.1, on each monthly or yearly anniversary, as stated in the Order, of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period.
9.2.2. The Customer shall pay the Subscription Fees to the Supplier in advance of the Services being provided.
9.2.3. The Supplier shall not provide the Services until the Subscription Fees have been paid.
9.3. All amounts and fees stated or referred to in these terms:
9.3.1. shall be payable in pounds sterling;
9.3.2. are, subject to clause 13.3.2, non-cancellable and non-refundable;
9.3.3. are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.
9.4. If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space specified in the Documentation, the Supplier shall charge the Customer, and the Customer shall pay, the Supplier's then current excess data storage fees. The Supplier's excess data storage fees current as at the Effective Date are set out at https://missinglettr.com/pricing/.
9.5. The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3, the support fees payable pursuant to clause 4.3 and/or the excess storage fees payable pursuant to clause 9.5 upon 30 days' prior notice to the Customer and https://missinglettr.com/pricing/ shall be deemed to have been amended accordingly. In the event that the Subscription Fees cannot be agreed the Customer is entitled to terminate in accordance with clause 14.
10. Proprietary rights
10.1. The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services, Software and the Documentation. Except as expressly stated herein, these terms 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 Services or the Documentation.
10.2. The Supplier confirms that it has all the rights in relation to the Services, Software and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of these terms.
11.1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under these terms. A party's Confidential Information shall not be deemed to include information that:
11.1.1. is or becomes publicly known other than through any act or omission of the receiving party;
11.1.2. was in the other party's lawful possession before the disclosure;
11.1.3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
11.1.4. is independently developed by the receiving party, which independent development can be shown by written evidence.
11.2. Subject to clause 11.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of these terms.
11.3. Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of these terms.
11.4. 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 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, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.6. The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier's Confidential Information.
11.7. The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
11.8. No party shall make, or permit any person to make, any public announcement concerning these terms 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.
11.9. The above provisions of this clause 11 shall survive termination of these terms, however arising.
12.1. The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services, Software and/or Documentation and/or Customer Data, provided that:
12.1.1. the Customer is given prompt notice of any such claim;
12.1.2. the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
12.1.3. the Customer is given sole authority to defend or settle the claim.
12.2. The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Services, Software or Documentation infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
12.2.1. the Supplier is given prompt notice of any such claim;
12.2.2. the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense;
12.2.3. such infringement does not arise as a result of the Customers Data as set out in clause 2.5; and
12.2.4. the Supplier is given sole authority to defend or settle the claim.
12.3. In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate these terms on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.4. In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
12.4.1. a modification of the Services or Documentation by anyone other than the Supplier; or
12.4.2. the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
12.4.3. the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
12.5. The foregoing and clause 13.3.2 states the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13. Limitation of liability
13.1. Except as expressly and specifically provided in these terms:
13.1.1. the Customer assumes sole responsibility for results obtained from the use of the Services 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 any actions taken by the Supplier at the Customer's direction;
13.1.2. 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 these terms; and
13.1.3. the Services and the Documentation are provided to the Customer on an "as is" basis.
13.2. Nothing in these terms excludes the liability of the Supplier:
13.2.1. for death or personal injury caused by the Supplier's negligence; or
13.2.2. for fraud or fraudulent misrepresentation.
13.3. Subject to clause 13.1 and clause 13.2:
13.3.1. 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, 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 these terms; and
13.3.2. the Supplier's total aggregate liability in contract (including in respect of the indemnity at clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these terms 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.
14. Term and termination
14.1. Either party can terminate with immediate effect for any reason at any time. Any Subscription Fees paid for Services after the date of termination shall be credited to the Customer’s account. No refund will be available.
14.2. On termination of these terms for any reason:
14.2.1. all licences granted under these terms shall immediately terminate and the Customer shall immediately cease all use of the Services, Software and/or the Documentation;
14.2.2. each party shall return and make no further use of any equipment, property, Documentation, Software and other items (and all copies of them) belonging to the other party, excluding Customer Data that has been posted to Third Party Social Sites;
14.2.3. the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with clause 5.7.3, unless the Supplier receives, no later than ten days after the effective date of the termination of these terms, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its 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 Data; and
14.2.4. 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 agreement which existed at or before the date of termination shall not be affected or prejudiced.
15. Force majeure
The Supplier shall have no liability to the Customer under these terms if it is prevented from or delayed in performing its obligations under these terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
No variation of these terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under these terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
18. Rights and remedies
Except as expressly provided in these terms, the rights and remedies provided under these terms are in addition to, and not exclusive of, any rights or remedies provided by law.
19.1. If any provision or part-provision of these terms 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 these terms.
19.2. If any provision or part-provision of these terms is deemed deleted under clause 19.1 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.
20. Entire agreement
20.1. These terms constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
20.2. Each party acknowledges that in entering into these terms it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these terms.
20.3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these terms.
20.4. Nothing in this clause shall limit or exclude any liability for fraud.
21.1. The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these terms.
21.2. The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these terms.
22. No partnership or agency
Nothing in these terms 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).
23. Third party rights
These terms does not confer any rights on any person or party (other than the parties to these terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
24.1. Any notice required to be given under these terms shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in these terms, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in these terms.
24.2. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
25. Governing law
These terms 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 construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these terms or its subject matter or formation (including non-contractual disputes or claims).