(these “Terms and Conditions”)

  • 1. Definitions
    In this Agreement:
    • 1.1 the following terms shall have the following meanings unless the context otherwise requires:
      “Agreement” these Terms and Conditions together with the Schedule and any document referred to in these Terms and Conditions or the Schedule;
      “Authorised Users” those of your employees, agents and independent contractors who are authorised by you to use the Services, as further described in Clause 3.2.2 and as stipulated in respect of each Subscription in the Schedule;
      “Basic Content” the online software applications and content that we make available on the Website for those subscribing to the Basic Subscription;
      “Basic Subscription” a package that we make available to you for access to subscription services through a website operated by us, as set out in more detail in the Schedule;
      “Breach of Duty” the breach of any: (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract; or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty);
      “Business Day” any day other than: (i) a Saturday; (ii) a Sunday; or (iii) a day when the clearing banks in the City of London are not physically open for business;
      “Business Hours” 9.00 am to 5.00 pm local UK time, each Business Day;
      “Client” , “you” or “your” the recipient of subscription services from us under this Agreement, as stipulated in the Schedule;
      “Confidential Information” any information in any form or medium obtained by or on behalf of either Party from or on behalf of the other Party in relation to this Agreement which is expressly marked as confidential or which a reasonable person would consider to be confidential, whether disclosed or obtained before, on or after the date of this Agreement, together with any reproductions of such information or any part of it;
      “Content” the Basic Content and Frenkels Calculator;
      “Controller” has the meaning set out in the Data Protection Laws;
      “Customer Data” the data inputted by you, Authorised Users, or us on your behalf, for the purpose of using the Services;
      “Data Subject” an individual who is the subject of Personal Data;
      “Data Protection Laws” in relation to any Personal Data which is Processed in the performance of this Agreement, the Data Protection Act 2018 and UK GDPR (to the extent applicable)), in each case together with all laws implementing or supplementing the same and any other applicable or equivalent data protection or privacy laws, and all other applicable law, regulations and codes of conduct relating to the processing of personal data and privacy;
      “Fees” the fees payable by you to us under this Agreement for access to the Services, as stipulated in the Schedule;
      “Frenkels Calculator” the online software application called “Frenkels Calculator” that we make available on the Website for those subscribing to the Premium Subscription;
      “Initial Term” the initial duration of our provision of the Services under this Agreement, as set out in the Schedule;
      “IPR” copyright and related rights, trade marks and service marks, trade names and domain names, rights under licences, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, patents, rights to inventions, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
      “Liability” liability in or for breach of contract, Breach of Duty, torts (including negligence and intentional torts), deliberate breach (including deliberate personal repudiatory breach), misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement (and, for the purposes of this definition, all references to “this Agreement” shall be deemed to include any collateral contract);
      “Party” us or you, and “Parties” means both of us and you;
      “Personal Data” has the meaning given to it by Data Protection Laws
      “Personal Data Breach” has the meaning given to it by Data Protection Laws
      “Premium Subscription” a package that we make available to you for access to subscription services through a website operated by us, as set out in more detail in the Schedule;
      “Privacy Policy” our policy for the privacy and security of, amongst other things, the Customer Data, available at www.frenkelscalculator.com; or such other website address as may be notified to you from time to time;
      “Process” and “Processing” has the meaning given to it in the Data Protection Laws;
      “Processor” has the meaning set out in the Data Protection Laws;
      “Renewal Term” has the meaning given to it in Clause 15.1;
      “Schedule” the written document, or web-page submission on the Website, you provide to us containing specific information relating to the particular services supplied or to be arranged to be supplied by us to you;
      “Services” the subscription services provided by us to you under this Agreement via www.frenkelscalculator.com;
      “Special Categories of Personal Data” those categories of data listed in Article 9(1) UK GDPR;
      “Subscription” the package for access to the Services for which you subscribe, being the Basic Subscription or the Premium Subscription;
      “Supervisory Authority” means any regulatory authority responsible for the enforcement of applicable data protection legislation;
      “Term” the Initial Term and all Renewal Terms;
      “User Credits” the user credits which entitle Authorised Users to access and use Frenkels Calculator to complete a particular number of calculations (as set out in the Schedule or otherwise agreed in accordance with Clause 4) in accordance with this 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 “Website” the website on which the Services available for use by you, hosted at www.frenkelscalculator.com;
    • 1.2 references to “Clauses” are to clauses of these Terms and Conditions;
    • 1.3 the headings are inserted for convenience only and shall not affect the construction or interpretation of this Agreement;
    • 1.4 a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
    • 1.5 a reference to a Party includes its personal representatives, successors or permitted assigns;
    • 1.6 words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and references to persons shall include an individual, company, corporation, firm, partnership, trust, association, government or local authority department or other authority or body (whether corporate or unincorporated);
    • 1.7 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
    • 1.8 any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression, shall be construed as illustrative, shall not limit the sense of the words preceding or following those terms, and shall be deemed to be followed by the words “without limitation” unless the context requires otherwise; and
    • 1.9 a reference to “writing” or “written” includes in electronic form and similar means of communication (except under Clause 23).
  • 2. Agreement
    • 2.1 The terms of this Agreement apply to the exclusion of any terms and conditions submitted, proposed or stipulated by you in whatever form and at whatever time. These Terms and Conditions apply to the Services.
    • 2.2 Save as expressly provided in this Agreement, this Agreement shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the Parties preceding the date of this Agreement and in any way relating to the subject matter of this Agreement and to the exclusion of any representations not expressly stated in this Agreement except for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter. Each of the Parties acknowledges that it has not entered into this Agreement based on any representation that is not expressly incorporated into this Agreement.
    • 2.3 This Agreement constitutes the whole agreement and understanding of the Parties as to the subject matter of this Agreement and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to in this Agreement.
    • 2.4 Any Schedule you submit to us must be in the form we require from time to time. This Agreement shall be legally formed and the Parties shall be legally bound when we have accepted the Schedule that you have signed and/or submitted to us. Your signature or submission to us of a Schedule we have made available to you (by any media) shall be deemed to be an offer by you to us to purchase access to the Services (as specified in the Schedule), subject to the provisions of the Schedule and these Terms and Conditions, and our written acceptance of such Schedule shall be considered our acceptance of such offer, but the requirements for us to perform any of our obligations under this Agreement shall be conditional upon our receipt from you of any advance payment of Fees as required under this Agreement.
    • 2.5 If you provide to us a purchase order in respect of the Services other than as set out in Clause 2.4, that purchase order (and any terms and conditions attached or referred to in it) shall be purely for your administrative purposes and shall not form part of this Agreement.
    • 2.6 In the event of a conflict between these Terms and Conditions and the Schedule, then the Schedule shall prevail over these Terms and Conditions.
  • 3. Access licence
    • 3.1 We hereby grant to you a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Term solely for your internal business operations
    • 3.2 In relation to the Authorised Users, you undertake that:
      • 3.2.1 each Authorised User shall keep a secure password for use of the Services, and that each Authorised User shall keep his password confidential;
      • 3.2.2 you shall maintain a written, up to date list of current Authorised Users and provide such list to us within five Business Days of our written request at any time or times;
      • 3.2.3 you shall permit us to audit the Services in order to establish the name and password of each Authorised User. 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 normal conduct of business;
      • 3.2.4 if any of the audits referred to in Clause 3.2.3 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to our other rights (whether under this Agreement or at law), you shall promptly disable such passwords and we shall not issue any new passwords to any such individual; and
      • 3.2.5 if any of the audits referred to in Clause 3.2.3 reveal that you have underpaid the Fees, then, without prejudice to our other rights and remedies, whether under this Agreement or at law, you shall pay to us an amount equal to such underpayment as calculated in accordance with the prices set out in the Schedule within ten Business Days of the date of the relevant audit.
    • 3.3 You shall not access, store, distribute or transmit any Viruses, or any material during the course of your use of the Services that:
      • 3.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
      • 3.3.2 facilitates illegal activity;
      • 3.3.3 depicts sexually explicit images;
      • 3.3.4 promotes unlawful violence;
      • 3.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
      • 3.3.6 in a manner that is otherwise illegal or causes damage or injury to any person or property; and we reserve the right, without Liability (subject to Clause 14.2) and without prejudice to our other rights and remedies whether under this Agreement or at law, to disable your access to the Services if you are in breach of this Clause 3.3.
    • 3.4 You shall not:
      • 3.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties:
        • (a) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means; or
        • (b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services; or
        • (c) access all or any part of the Services in order to build a product or service which competes with the Services; or
        • (d) use the Services to provide services to third parties; or
        • (e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
        • (f) attempt to obtain, or assist third parties in obtaining, access to the Services, except as expressly provided for by this Agreement.
    • 3.5 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify us.
    • 3.6 The rights provided under this Clause 3 are granted to you only, and shall not be considered granted to any subsidiary or holding company of you.
  • 4. Additional User Credits
    • 4.1 You may only use Frenkels Calculator for the number of calculations that corresponds with the number of User Credits you have purchased at any time. Each time an Authorised User completes a calculation using Frenkels Calculator, a User Credit will be used up. Subject to Clause 4.2 and Clause 4.3, you may, from time to time during the Term, purchase additional User Credits in excess of the number set out in the Schedule and we shall grant access to the Services to Authorised Users in accordance with the provisions of this Agreement.
    • 4.2 If you wish to purchase additional User Credits, you shall notify us in writing. We shall evaluate such request and respond to you with approval or rejection of the request.
    • 4.3 If we approve your request to purchase additional User Credits, you shall pay to us the relevant Fees for such additional User Credits in accordance with our payment terms from time to time.
  • 5. Services
    • 5.1 We shall, during the Term, make the Services available to you on and subject to the terms of this Agreement.
    • 5.2 We may, at our absolute discretion, from time to time either host the Services on our own servers or use third party suppliers to do so in whole or in part. You acknowledge that we may from time to time without prior notice and without the need for prior agreement provide reasonable additional obligations or requirements or reasonably restrict your rights due to the requirements of the third party suppliers.
    • 5.3 You acknowledge that we cannot guarantee uninterrupted, timely or error-free access to the Services due to events beyond our control (including operation of public and private networks by Internet service providers, telecoms providers and third parties), and we may also need to carry out maintenance (whether planned or unplanned, and routine or not) from time to time on the Services; however, we shall use our reasonable endeavours to minimise downtime of the Services. Subject to us having used such reasonable endeavours, we do not warrant that the provision of the Service to you will be uninterrupted or errorfree.
    • 5.4 We reserve the right at our absolute discretion to make changes to the Services at any time.
    • 5.5 We do not guarantee that the Services will be free from faults. We shall use our reasonable endeavours, to:
      • 5.5.1 correct any errors or omissions in the Services after receiving full and clear information on them (“Support Services”); and
      • 5.5.2 respond to a request for Support Services;
      but we cannot guarantee any particular result or outcome nor within any particular time. In particular, without limitation, we may need to obtain support in turn from a third party that assists us with the provision of the Support Services. The Support Services exclude the resolution of faults or defects that arise as a result of your failure to comply with this Agreement or any other agreement between you and us. We may provide those excluded services as part of the Support Services at our absolute discretion; subject to Clause 14.2, we will not have any liability for our provision of any of those excluded services to you. You can request Support Services by emailing us at help@frenkelscalculator.com.
  • 6. Data Protection
    • 6.1 You have (and shall have) absolute and exclusive responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
    • 6.2 We shall follow our standard archiving procedure for Customer Data as we may have in place from time to time. In the event of any loss or damage to Customer Data during use of the Services, your sole and exclusive remedy shall be for us to use our reasonable endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by us in accordance with our standard archiving procedure. We shall not be responsible, nor shall we have any Liability, subject to Clause 14.2, 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).
    • 6.3 We shall, in providing the Services, comply with our Privacy Policy, as we may amend such document from time to time at our absolute discretion.
    • 6.4 You acknowledge that we do not need any Personal Data to give you access to the Services and allow you to use them; and Personal Data that you include in the Customer Data is included at your discretion, but is not required to make use of the Services. To the extent you provide such Personal Data to us, the remainder of this Clause 6 will apply.
    • 6.5 The Parties acknowledge that, for the purposes of Data Protection Laws, you are the Controller and we are the Processor of any Customer Data
    • 6.6 Each Party confirms that it holds, and during the term of this Agreement will maintain, all registrations and notifications required in terms of the Data Protection Laws which are appropriate to its performance of the obligations under this Agreement.
    • 6.7 Each Party confirms that, in the performance of this Agreement, it will comply with Data Protection Laws.
    • 6.8 We shall:
      • 6.8.1 Process Customer Data only on documented instructions from you, unless required to do so by Data Protection Laws or any other applicable law to which we are subject; in such a case, we shall inform you of that legal requirement before Processing, unless that law prohibits us to so inform you;
      • 6.8.2 ensure that persons authorised to Process the Customer Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
      • 6.8.3 ensure that we have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Data and against accidental loss or destruction of, or damage to, Customer 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 Customer Data, ensuring confidentiality, integrity, availability and resilience of our systems and services, ensuring that availability of and access to Customer 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 us);
      • 6.8.4 notify you as soon as reasonably practicable before appointing any subcontractor in respect of Processing of Customer Data, and ensure that any such subcontractor complies with the provisions of this Paragraph 6 as if it was a Party; if you (acting reasonably) object to the appointment of the subcontractor for reasons relating to the Processing of Customer Data and we cannot provide the relevant Services without the appointment of that subcontractor and/or provide a reasonable alternative means of providing the Services, you shall have the right to terminate this Agreement immediately on written notice; a list of pre-approved subprocessors for such purposes are set out in Clause 6.13;
      • 6.8.5 taking into account the nature of the Processing, assist you by putting in place appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising the Data Subject's rights laid down in Data Protection Laws, to the extent that such requests relate to this Agreement and our obligations under it;
      • 6.8.6 assist you, at your cost, in responding to any request from a Data Subject and in ensuring compliance with your obligations under Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
      • 6.8.7 at your option, delete (to the extent practicable) or return all the Customer Data to you after termination of this Agreement or otherwise on your request, and delete existing copies (to the extent practicable) unless applicable law requires our ongoing storage of the Customer Data;
      • 6.8.8 not share the Customer Data with any other processors of personal data that you commission without your prior written consent;
      • 6.8.9 make available to you all information necessary to demonstrate our compliance with this Clause 6.7, and allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you, provided that:
        • (a) you give us reasonable notice of any such audit;
        • (b) such audit takes place during our normal business hours and does not cause unreasonable disruption to our normal business operations; and
        • (c) during such audit, you will have access only to information that is directly relevant to this Agreement, and you will have no access to information which is proprietary to us or in respect of which we owe obligations of confidentiality to any third party; and
      • 6.8.10 inform you immediately if, in our opinion, an instruction from you infringes (or, if acted upon, might cause the infringement of) Data Protection Laws.
    • 6.9 Each Party will notify the other Party promptly (and in any event within 48 hours) if it becomes aware of a Personal Data Breach relating to either Party’s obligations under the Agreement.
    • 6.10 You shall undertake appropriate data protection impact assessments to ensure that Processing of Customer Data complies with Data Protection Laws. We will provide you with reasonable assistance, where necessary and upon your request, in carrying out any data protection impact assessment and undertaking any necessary prior consultation of the Supervisory Authority.
    • 6.11 It is your responsibility to ensure that Customer Data is dealt with in a way that is compliant with the “data protection principles” (as defined in Data Protection Laws).
    • 6.12 You shall ensure that
      • 6.12.1 you are able to justify the Processing of Customer Data as lawful in accordance with Data Protection Laws (including, where applicable, obtaining any and all consents of Data Subjects required in order to commence the Processing), and that you have recorded or documented this in accordance with the record keeping requirements of Data Protection Laws;
      • 6.12.2 where Customer Data falls within the Special Categories of Personal Data, the Processing of such Special Categories of Personal Data is justified as lawful under Data Protection Laws before Processing takes place;
      • 6.12.3 where the Processing of Special Categories of Personal Data is not justified as lawful under Data Protection Laws, no such data will be sent to us; and
      • 6.12.4 you have all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Data to us for the duration and purposes of the Agreement.
    • 6.13 Each Party agrees to indemnify, and keep indemnified and defend at its own expense, the other Party, against all costs, claims, damages or expenses incurred by the other Party or for which the other Party may become liable, due to any failure by the first Party or its employees or agents to comply with this Paragraph 6.
    • 6.14 The details of Processing under this Agreement are set out below
  • 7. Third party providers
  • You acknowledge that the Services may enable or assist you to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that you do so solely at your own risk. We make no representation or commitment and, subject to Clause 14.2, shall have no Liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by you, with any such third party. Any contract entered into and any transaction completed via any third-party website is between you and the relevant third party, and not us. We recommend that you refer to the third party's website terms and conditions and privacy policy prior to using the relevant thirdparty website. We do not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
  • 8. Our obligations
    • 8.1 We undertake that the Services will be made available to you and performed with reasonable skill and care.
    • 8.2 Subject to Clause 14.2, we shall not have any Liability for:
      • 8.2.1 your use of the Services contrary to our instructions, or modification or alteration of the Services by any party other than us or our duly authorised contractors or agents; and/or
      • 8.2.2 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 Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
    • 8.3 We warrant that the Services will meet your requirements in performing such calculations in respect of which you use the Services. However, you acknowledge that such warranty is subject to you entering such information and data into the Services as is correct for the Services to complete the calculation that you require. We do not warrant that the Services and/or the information obtained by you through the Services will meet your requirements unless the information and data that you enter into the Services is correct and up-to-date at the time of entry and is updated as and when necessary thereafter.
    • 8.4 This 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 those provided under this Agreement.
    • 8.5 We warrant that we have and will maintain all necessary licences, consents, and permissions necessary for the performance of our obligations under this Agreement.
  • 9. Your obligations
    You shall:
    • 9.1 only submit to us or the Website information and data which is accurate and not misleading, and you must keep it up-to-date and inform us of any changes;
    • 9.2 provide us with:
      • (a) all necessary co-operation in relation to this Agreement; and
      • (b) all necessary access to such information as we may require;
      in order to provide the Services, including Customer Data, security access information and configuration services;
    • 9.3 comply with all applicable laws and regulations with respect to your activities under this Agreement;
    • 9.4 carry out all other of your responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in your provision of such assistance, we may adjust any agreed timetable or delivery schedule as reasonably necessary;
    • 9.5 ensure that the Authorised Users use the Services in accordance with this Agreement and be responsible for any Authorised User's breach of this Agreement;
    • 9.6 obtain and maintain all necessary licences, consents, and permissions necessary for us, our contractors and agents to perform our and their obligations under this Agreement, including the Services;
    • 9.7 ensure that your network and systems comply with the relevant specifications provided by us from time to time; and
    • 9.8 be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the Internet.
  • 10. Charges and payment
    This section only applies once you have signed up as a user and not during any free-trial periods we may offer.
    • 10.1 In consideration of our provision to you of access to the Services, you shall pay the Fees to us.
    • 10.2 You shall pay the Fees to us:
      • 10.2.1 at such times and in such instalments as we may direct from time to time; unless set out otherwise in this Agreement, we may issue invoices to you for the Fees at such intervals as we may, at our absolute discretion, consider appropriate;
      • 10.2.2 by any payment method that we may stipulate from time to time; no payment shall be considered paid until we have received it in cleared funds in full;
      • 10.2.3 in the currency in force in England from time to time or such other currency as we may stipulate from time to time for the Fees; and
      • 10.2.4 in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
    • 10.3 All sums due under this Agreement are exclusive of VAT or other sales, import or export duties or taxes (if applicable) which shall be payable in addition at the same time as payment of any sums due.
    • 10.4 If you are late in paying any part of any monies due to us under this Agreement and such payment remains outstanding for seven days following us providing notice to you of such outstanding payment, we may (without prejudice to any other right or remedy available to us whether under this Agreement or by any statute, regulation or bye-law) do any or all of the following:
      • 10.4.1 charge interest and other costs on the overdue amount due but unpaid at the annual rate of interest set under Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly;
      • 10.4.2 recover our costs and expenses and charges (including legal and debt collection fees and costs) in collecting the late payment; and
      • 10.4.3 suspend performance of this Agreement, and any licences and rights granted under it, until payment in full has been made.
    • 10.5 We shall be entitled to increase the Fees and/or the fees payable in respect of additional User Credits that may be purchased pursuant to Clause 4.3 at the start of each Renewal Period upon 100 days' prior notice to you, and the Schedule shall be deemed to have been amended accordingly.
  • 11. Proprietary rights
    • 11.1 You acknowledge and agree that we and/or our licensors own all IPR in the Services. Except as expressly stated herein, this Agreement does not grant you any IPR in respect of the Services.
    • 11.2 We confirm that we have all the rights in relation to the Services that are necessary to grant all the rights we purport to grant under, and in accordance with, this Agreement.
  • 12. Confidentiality
    • 12.1 Each Party shall keep the other Party’s Confidential Information confidential and shall not:
      • 12.1.1 use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement; or
      • 12.1.2 disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this Clause 12. Each Party shall use adequate procedures and security measures to protect the other Party’s Confidential Information from inadvertent disclosure or release to unauthorised persons.
    • 12.2 A Party may disclose the other Party’s Confidential Information to those of its employees, agents and subcontractors who need to know such Confidential Information provided that:
      • 12.2.1 it informs such employees, agents and subcontractors of the confidential nature of the Confidential Information before disclosure; and
      • 12.2.2 it does so subject to obligations equivalent to those set out in this Clause 12.
    • 12.3 A Party may disclose the Confidential Information of the other Party 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 12.3, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.
    • 12.4 The obligations of confidentiality in this Clause 12 shall not extend to any matter which either Party can show:
      • 12.4.1 is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations of this Agreement; or
      • 12.4.2 was independently developed by it; or
      • 12.4.3 was independently disclosed to it by a third party entitled to disclose the same; or
      • 12.4.4 was in its written records prior to receipt.
    • 12.5 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 this Agreement are granted to the other Party, or to be implied from this Agreement.
    • 12.6 We may identify you as our client and the type of Services provided by us to you, provided that, in doing so, we shall not reveal any of your Confidential Information (without your prior written consent).
    • 12.7 On termination of this Agreement, each Party shall:
      • 12.7.1 return to the other Party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other Party’s Confidential Information;
      • 12.7.2 erase all the other Party’s Confidential Information from its computer systems (to the extent possible); and
      • 12.7.3 certify in writing to the other Party that it has complied with the requirements of this Clause 12.7, 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.
    • 12.8 The provisions of this Clause 12 shall continue to apply after termination of this Agreement.
  • 13. Indemnity
    • 13.1 You shall defend us, indemnify us 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 use of the Services otherwise than in accordance with this Agreement.
    • 13.2 Subject to the limits and exclusions on our Liability set out in Clause 14, we shall defend you, your officers, directors and employees against any claim that the Services infringes any IPR of any third party, and shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:
      • 13.2.1 we are given prompt notice of any such claim;
      • 13.2.2 you provide reasonable co-operation to us in the defence and settlement of such claim, at our expense; and
      • 13.2.3 we are given sole authority to defend or settle the claim. In the defence or settlement of any such claim, we may procure the right for you 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 this Agreement on two Business Days' notice to you without any additional Liability or obligation to you, subject to Clause 14.2.
    • 13.3 In no event shall we, our employees, agents and sub-contractors have any Liability to you (subject to Clause 14.2) to the extent that any alleged infringement set out in Clause 13.2 is based on:
      • 13.3.1 a modification of the Services by anyone other than us; or
      • 13.3.2 your use of the Services in a manner contrary to this Agreement or the instructions given to you by us; or
      • 13.3.3 your use of the Services after notice of the alleged or actual infringement from us or any third party.
    • 13.4 This Clause 13 states your sole and exclusive rights and remedies, and our (and our employees', agents' and subcontractors') entire obligations and Liability (subject to Clause 14.2), for infringement of any IPR of any third party by the Services.
  • 14. Limitation of Liability
    • 14.1 This Clause 14 prevails over all of this Agreement and sets forth our entire Liability, and your sole and exclusive remedies, in respect of:
      • 14.1.1 performance, non-performance, purported performance, delay in performance or mis-performance of this Agreement or any goods, services or deliverables in connection with this Agreement; or
      • 14.1.2 otherwise in relation to this Agreement or entering into this Agreement.
    • 14.2 Neither Party excludes or limits its Liability for:
      • 14.2.1 its fraud; or
      • 14.2.2 death or personal injury caused by its Breach of Duty; or
      • 14.2.3 any breach of the obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; or
      • 14.2.4 any other Liability which cannot be excluded or limited by applicable law.
    • 14.3 Subject to Clause 14.2, we do not accept and hereby exclude any Liability for Breach of Duty other than any Liability arising pursuant to the terms of this Agreement.
    • 14.4 Subject to Clause 14.2, we shall not have any Liability in respect of any:
      • 14.4.1 indirect or consequential losses, damages, costs or expenses;
      • 14.4.2 loss of actual or anticipated profits;
      • 14.4.3 loss of contracts;
      • 14.4.4 loss of use of money;
      • 14.4.5 loss of anticipated savings;
      • 14.4.6 loss of revenue;
      • 14.4.7 loss of goodwill;
      • 14.4.8 loss of reputation;
      • 14.4.9 loss of business;
      • 14.4.10 ex gratia payments;
      • 14.4.11 loss of operation time;
      • 14.4.12 loss of opportunity;
      • 14.4.13 loss caused by the diminution in value of any asset; or
      • 14.4.14 loss of, damage to, or corruption of, data; whether or not such losses were reasonably foreseeable or we or our agents or contractors had been advised of the possibility of such losses being incurred. For the avoidance of doubt, Clauses 14.4.2 to 14.4.14 (inclusive) of this Clause 14.4 apply whether such losses are direct, indirect, consequential or otherwise.
    • 14.5 Subject to Clause 14.2, our total aggregate Liability arising out of or in connection with all claims in aggregate shall be limited to the greater of:
      • 14.5.1 110% of all amounts paid and total other sums payable, in aggregate, by you to us under this Agreement in the 12 months prior to the date on which the claim first arose; or
      • 14.5.2 £500,000 (Five hundred thousand pounds)
    • 14.6 The limitation of Liability under Clause 14.5 has effect in relation both to any Liability expressly provided for under this Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of this Agreement.
    • 14.7 You acknowledge and accept that we only grant to you access to the Services on the express condition that we will not be responsible for, nor shall we have any Liability (subject to Clause 14.2) directly or indirectly for any act or omission of you, or your employees, agents or subcontractors, or any third party.
    • 14.8 Except as expressly and specifically provided in this Agreement:
      • 14.8.1 you assume sole responsibility for results obtained from your use of the Services, and for conclusions drawn from such use. Subject to Clause 14.2, 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 Services, or any actions taken by us at your direction;
      • 14.8.2 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 this Agreement; and
      • 14.8.3 the Services are provided to you on an "as is" basis.
  • 15. Term and termination
    • 15.1 This Agreement shall commence on the date it is entered into under Clause 2.4. Unless terminated earlier in accordance with this Agreement, this Agreement shall continue for the Initial Term and shall automatically extend for 12-monthly periods (each a “Renewal Term”) at the end of the Initial Term and at the end of each Renewal Term. Either Party may give written notice to the other Party, not later than 90 days before the end of the Initial Term or the relevant Renewal Term, to terminate this Agreement at the end of the Initial Term or the relevant Renewal Term, as the case may be.
      Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:
      • 15.1.1 the other Party commits a material breach of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of seven days after being notified in writing to do so; or
      • 15.1.2 the other Party gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is made or a resolution is passed for the winding-up of the other Party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other Party or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other Party’s assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator or which entitle the court to make a winding-up or bankruptcy order, or the other Party takes or suffers any similar or analogous action in consequence of debt in any jurisdiction; and/or
      • 15.1.3 the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
    • 15.2 Without affecting any other right or remedy available to us, we may terminate this Agreement without Liability (subject to Clause 14.2), with immediate effect by giving written notice to you, if:
      • 15.2.1 you fail to pay any amount due under this Agreement on the due date for payment and remain in default not less than 14 days after being notified in writing to make such payment; or
      • 15.2.2 you undergo a change of control (as defined in section 1124 of the Corporation Tax Act 2010); or
      • 15.2.3 you challenge or dispute the validity of any of our IPR; or
      • 15.2.4 you purport to assign any of your rights or obligations under this Agreement.
    • 15.3 On termination of this Agreement for any reason:
      • 15.3.1 all licences and rights granted under this Agreement shall immediately terminate;
      • 15.3.2 each Party shall return and make no further use of any equipment, property and other items (and all copies of them) belonging to the other Party;
      • 15.3.3 you shall pay to us any amounts due to us under this Agreement, whether invoiced or not;
      • 15.3.4 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 this Agreement, a written request for the delivery to you of the then most recent back-up of the Customer Data. We shall use our reasonable 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
      • 15.3.5 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 this Agreement which existed at or before the date of termination, shall not be affected or prejudiced.
  • 16. Force majeure
    Neither Party shall in any circumstances be in breach of this Agreement, nor, subject to Clause 14.2, have any Liability for delay in performing, or failure to perform, any of its obligations under this Agreement, if such delay or failure results from events, circumstances or causes beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of a Party or any third 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. In such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for one month, the Party not affected may terminate this Agreement by giving 30 days' written notice to the other Party.
  • 17. Waiver and remedies
    • 17.1 No failure or delay by either Party to exercise any right or remedy provided under this Agreement 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.
    • 17.2 Except as expressly provided in this Agreement, the rights and remedies provided under this 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 this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause 18 shall not affect the validity and enforceability of the rest of this Agreement.
    • 18.2 If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
  • 19. Variation
    No variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
  • 20. Assignment
    You shall not assign, transfer, charge or otherwise encumber, create any trust over, or deal in any manner with, this Agreement or any right, benefit or interest under it, nor transfer, novate or sub-contract any of your obligations under it, without our prior written consent (such consent not to be unreasonably withheld or delayed).
  • 21. No partnership or agency
    Nothing in this Agreement shall constitute a partnership or employment or agency relationship between the Parties.
  • 22. Third party rights
    A person who is not a Party shall not have any rights under or in connection with this Agreement.
  • 23. Notices
    • 23.1 Any notice given to either Party under or in connection with this Agreement shall be in writing, addressed to the relevant Party at its registered office or such other address as that Party may have specified to the other Party in writing, and shall be delivered personally, sent by pre-paid first class post, recorded delivery or commercial courier.
    • 23.2 A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 23.1; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; or, if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
    • 23.3 The provisions of this Clause 23 shall not apply to the service of any proceedings or other documents in any legal action.
  • 24. Governing law and jurisdiction
    • 24.1 This Agreement and any disputes or claims 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 laws of England.
    • 24.2 The Parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with this Agreement, its subject matter or its formation.
  • These Terms & Conditions were most recently updated in May 2023.
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