1.1 The definitions and rules of interpretation in this Clause apply in these Terms.
Agreement: the contract between the Company and the Customer consisting of the Order Form and these Terms.
Authorized Users: those employees, agents and independent contractors of the Customer who are authorized by the Customer to use the Platform, Services and the Documentation.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 11.6.
Customer: (“You”, or “Your”) the customer identified in the accompanying Order Form who is purchasing subscriptions to the Platform from Talentis.Global.
Customer Data: any data input by the Customer or an Authorized User, or the Company on the Customer’s behalf for the purpose of using the Platform or the Services or facilitating the Customer’s use of the Services but excluding any Platform Content.
Data Protection Legislation: means the General Data Protection Regulations (EU 2016/679) and any national implementing legislation, as amended or updated from time to time in the appropriate jurisdictions.
Data Subject: as defined by the prevailing Data Protection Legislation
Ikiru People Ltd. (“Company”, “we,”or “us”), the company that provides the Talentis.Global solution. It applies to information we collect when you use the websites including www.Talentis.Global, applications and online services provided by us in connection with Talentis.Global (collectively, the “Services”) or when you otherwise interact with us, Ikiru People Ltd, company number 2043300, registered at 12 Cedarwood, Crockford Lane, Chineham Business Park, Basingstoke, RG24 8WD, United Kingdom.
Documentation: any of the user documentation, including the Authorized User Terms, or archiving policy service specifications made available to the Customer, or available via the Platform from time to time which sets out a description of the Services and the user instructions for the Services.
Effective Date: the date of the Agreement or the date by which the Customer accesses the Services, whichever is the sooner.
Order Form: The Customer sign up page within the Services where the Customer enters their company details, selects their subscription type and number of Authorised Users.
Organization Data: information about organizations including name, locations, size, turnover, industry sector
Person: an individual for which a profile exists on the Talentis Platform
Platform: the Talentis.Global Platform
Platform Content: content, including Person profiles and organization data, made available by Talentis.Global to all authorized users that has not been input specifically for the Customer.
Person Data: information about a Person, including Personal Data, that could be used to identify potential suitability for a new role or vacancy.
Privacy Information Notice: a notice outlining the information requirements necessary to be given by the Controller to a Data Subject under the Data Protection Legislation in the form agreed between the parties from time to time.
Search Data: a data look-up or Person search of data accessible via the Platform including Person Data, Organisation data or Customer Data. It might also include automated recommendations provided by the Platform and similar candidate features.
Subscription Fees: The fees payable by the Customer to the Company per Authorised User per Subscription Period.
Software: the online software applications provided by Talentis.Global as part of the Services, typically referred to as Talentis.
Terms: these terms and conditions.
Virus: anything 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 Capitalised words defined in the Order Form and used in these Terms have the meaning set out in these Terms.
1.3 Clause, schedule and paragraph headings shall not affect the interpretation of these Terms.
1.4 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.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and vice versa, and a reference to one gender includes all genders.
1.6 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Agreement, and includes all subordinate legislation made as at the date of the Agreement under that statute or statutory provision.
2.1 These Terms shall apply to and be incorporated into the Agreement and shall prevail over any inconsistent terms or conditions contained in or referred to in the Order Form, confirmation of order, or implied by law, trade, custom practice or any course of dealings.
2.2 No addition to, variation of, exclusion or attempted exclusion of any provision in the Agreement shall be binding on the Company, unless it is in writing, signed by a duly authorized representative and expressly overriding the relevant provision in these Terms. The Company may vary any of the Documentation or the Authorized User Terms from time to time by publishing a notice on the Platform. Your continued use of the Services following the provision of such notice will confirm your acceptance of these Terms. If you do not agree to the modified Terms you must stop using the Services.
2.3 The Customer’s signature, or electronic confirmation of the Order Form constitutes an offer by the Customer to purchase the service specified in it on these Terms; accordingly, the execution and return of the acknowledgement of the Order Form (by email or otherwise) or acceptance of an Authorized User Account, establishes a contract for the supply and purchase of those Services on these Terms. No other terms and conditions attached to, enclosed with, or referred to in, the Order Form shall apply to this Agreement.
3.1 The Company shall, during the Subscription Term, provide the Services to the Customer on and subject to these Terms.
3.2 The Company shall use commercially reasonable endeavours to make the Platform and Services available 24 hours a day, seven days a week, except for planned maintenance carried out on reasonable notice. The Customer acknowledges that unplanned maintenance may be required to respond to a specific issue, and where the unplanned maintenance is likely to suspend access for period of more than 2 hours, the Company shall use reasonable efforts to give the Customer reasonable notice in advance of the Platform or Services being unavailable.
3.3 The Customer acknowledges that any Search Data returned via the Services may include information sourced by the Company from third parties, and that the Company has no control over the quality or accuracy of such Search Data and does not warrant or make any representation or commitment that any Search Data is complete, accurate or up to date. Such data may not be available for downloading.
3.4 The Company warrants that the Services will be provided with reasonable skill and care in accordance with accepted industry practices.
3.5 The Customer acknowledges that appropriate use of the Platform by all Authorized users is necessary to ensure that each Person is able to have a fair opportunity when considered for career prospects. The Customer, and each Authorized User shall ensure that the Authorized Users do not act in a manner that is likely to generate complaints from Persons or other Authorized users of the Platform and does not bring the reputation of the Platform into disrepute.
Failure to adhere to these fairness principles will be considered a breach of this Agreement, and the Company reserves the right to suspend and/or terminate any individual Authorized User and/or the Customer where these principles are not met.
3.6 You must not use the Services if:
3.6.1 you have previously had access to the Services terminated by us;
3.6.2 the laws of the country in which you reside prohibit the use of the Services in accordance with these Terms;
3.6.3 your use of the Services breaches any other agreement to which you are party;
3.6.4 you are under 16 years of age;
3.6.5 you are currently employed by an organization that could reasonably be expected to be a direct competitor to Dillistone Group Plc or one of its subsidiaries.
3.7 We reserve the right, in our sole discretion to modify the Services at any time without notice and without obligation or liability to you.
3.8 The Customer acknowledges that via the Services the Company provides means to access 3rd party products and services not directly provided by the Company. The use of these is entirely the choice of the Customer and by using them the Customer confirms that they have read and agree to the relevant terms, privacy information notices and any other pertinent documentation relating to these 3rd party products which can be found on the relevant 3rd party websites.
3.9 The Customer acknowledges that the Company has no control over any 3rd party products and services accessible from within the Services nor does the Company make any warranties with regard to those 3rd party products and services or their continued availability.
4.1 In accordance with the restrictions set out in this Clause 4 and these Terms, the Company hereby grants to the Customer a non-exclusive, non-transferable right, to permit the Authorised Users to access the Platform and use the Services during the Subscription Term solely for the purpose of business development, delivering the Customer’s recruitment service for its own internal recruitment, or for clients of the Customer up to the number of active user subscriptions for which the Customer has paid for in a period.
4.2 In relation to the Authorized Users, the Customer warrants and undertakes that:
4.2.1 it will not allow any User Subscription to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User and the prior Authorized User no longer has any right to access or use the Services;
4.2.2 each Authorized User shall keep a secure password for his use of the Services which shall be kept secure and confidential;
4.2.3 it shall maintain a written, up to date list of current Authorized Users and provide such list to the Company on request, and permit the Company, to audit the use of the Services by Authorized Users from time to time providing that the audit shall not interfere with the Customer’s normal conduct of business. If any audit identifies a password has been provided to an individual who is not an Authorized User, then without prejudice to the rights of the Company that password and username may be temporarily or permanently disabled, and if the Customer has underpaid the Subscription Fees the Customer shall pay to the Company an amount equal to the underpayment within 5 Business Days of receipt of an invoice from the Company; and
4.2.4 it shall be solely responsible for the use and any misuse of the Platform and any Services by any Authorized User.
4.3 The Customer shall not, nor permit any Authorized User to access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or is otherwise illegal or causes damage or injury to any person or property. The Company reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access, or access of an individual Authorized User, to any material that breaches the provisions of this Clause.
4.4 The Customer shall not:
4.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Agreement:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services or the Software and/or Documentation (as applicable) in any form or media or by any means; or
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services and/or Software; or
4.4.2 access all or any part of the Services in order to build a product or service which competes with the Services or use the Services to provide services to third parties; or
4.4.3 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 Authorized Users, or
4.4.4 attempt to obtain, or assist third parties in obtaining, access to the Services other than as provided under this Clause4.
4.5 The Customer shall use all reasonable endeavours to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use notify the Company as soon as practicable and in any event within 48 hours.
4.6 The rights provided under this Clause 4 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer, or client of the Customer without the Company’s consent.
5.1 In this Clause, the following terms have the meanings set out in the Data Protection Legislation: “Controller”; “Processor”; “Data Subject”; “Personal Data” “Process”.
5.2 The Customer acknowledges that Person Data may include data supplied from third parties, including the Person themselves, and could therefore be confidential information of the Person. The Customer undertakes that it shall, and shall procure that its Authorized Users, only use Person Data for the purpose of recruitment operations on behalf of itself or its own client where applicable, and will comply with any relevant applicable Data Protection Legislation
5.3 The Customer acknowledges that:
5.3.1 The Company is the Controller in respect of Personal Data that forms part of the Platform Content (including Person Data); and
5.3.2 The Customer can supplement the data we hold on Persons, with this information being restricted and only being made available to the Customer who added it. We act as a Processor for our Customers by facilitating this silo which forms part of the Customer Data and therefore the Customer acts as the Controller for this data as they are responsible for the content, legal basis, retention and so on.
5.4 The Customer acknowledges that:
5.4.1 where the Company facilitates access to Person Data the Customer may only use such Person Data in accordance with the Privacy Information Notice or the Data Protection Legislation; and
5.4.2 it may only divulge Personal Data of a Person to a third party in accordance with the Privacy Information Notice or in accordance with the Data Protection Legislation.
5.5 Where the Company processes Personal Data on behalf of the Customer in performing its obligations under these Terms, the Company shall:
5.5.1 only process and use Personal Data in accordance with these Terms and Customer’s instructions for the purpose of providing the Platform and performing the Services;
5.5.2 maintain in place appropriate technical and organisation measures to protect Personal Data against unauthorized or unlawful Processing and against accidental loss or destruction of, or damage to the Personal Data;
5.5.3 ensure that access to Personal Data is restricted and is not by default available to all personnel of the Company, or any sub-contractor;
5.5.4 ensure that the Company personnel who have access to Personal Data receive appropriate training and are aware of, and understand the risks associated with the management of Personal Data; and
5.5.5 ensure that where it appoints a third party to Process Personal Data for any purpose, that it will ensure that there is a written agreement in place with the subcontractor on equivalent terms to those set out in this Clause 5.
5.6 The Customer acknowledges that Personal Data may be processed outside the European Economic Area or the country where the Customer and the Authorized Users are located in accordance with the requirements of the Data Protection Legislation in order for the Company to carry out the Services and its other obligations under these Terms.
5.7 The parties agree to fully cooperate with each other to enable them to comply in good time with any request by a Data Subject to exercise any of their rights under the Data Protection Legislation, including but not limited to the right of subject access, and/or to respond to any enquiry or investigation or assessment of Processing initial by a regulatory authority in respect of the Personal Data.
5.8 The Company shall promptly notify the Customer if any Personal Data processed under the Agreement linked to them is lost, destroyed, damaged, corrupted or accessed by or disclosure to unauthorized third parties or where it reasonably suspects such a breach has occurred. Where known, the Company shall provide details of the nature of the breach or suspected breach, categories of data subjects who may be affected; likely consequence of the breach or suspected breach and measures taken or proposed to be taken to address the breach or suspected breach.
5.9 The Customer shall promptly notify the Company of any actual or suspected breach of confidentiality in respect of an Authorized User’s username or password, or any loss, destruction, corruption or damage to any Person Data, or any unauthorized access or disclosure of Person Data outside the scope of the Privacy Information Notice.
6.1 Subject to Clause 11.3 the Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
6.2 Where Customer Data is stored within the Platform, the Company will back up the Customer Data in accordance with its archiving policy from time to time and good industry practice. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for the Company 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 Company in accordance with the archiving policy. The Company 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 Company to perform services related to Customer Data maintenance and back-up).
7.1 The Company 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 other than in accordance with the Company’s instructions, or modification or alteration of the Services by any party other than the Company. If the Services do not conform to the foregoing undertaking, the Company 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 Clause7.1. Notwithstanding the foregoing, the Company:
7.2.1 provides the Services “As Is” and “As Available” without warranties of any kind either express or implied, including, but not limited to, implied warranties of merchantability or fitness for a particular purpose;
7.2.2 does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services and/or the Search Data obtained by the Customer through the Services will meet the Customer’s requirements; and
7.2.3 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3 The Customer acknowledges that this is not an exclusive supply arrangement, and the Company shall be free to provide equivalent services to the Service to third parties, including competitors of the Customer, and that equivalent Search Data results may be obtained by another customer of the Company inputting similar search terms.
7.4 The Company warrants that it has and will maintain the licences, consents, and permissions necessary for the performance of its obligations under these Terms.
7.5 If the Customer notifies the Company of any non-conformity of the Services within 5 Business Days of any failure, subject to Clause 7.2, the Company’s sole obligation shall be to re-perform the affected Services within a reasonable period of time.
8.1 The Customer shall:
8.1.1 co-operate with the Company in relation to performance of these Terms and the Agreement;
8.1.2 comply with all applicable laws and regulations with respect to its activities under these Terms;
8.1.3 carry out all Customer responsibilities set out in these Terms in a timely manner;
8.1.4 ensure that the Authorized Users use the Services in accordance with these Terms and the Authorized User Terms and shall be responsible and liable for any Authorized User’s breach of these Terms and/or the Authorized User Terms;
8.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Company to perform its obligations under these Terms;
8.1.6 ensure that its network and systems comply with the relevant specifications 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 Company’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.
8.2 The Customer shall not use the Services in any manner that in any way that breaches any applicable local, national or international law or regulation, or in a way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect. In particular, the Customer shall not use the Services to transmit or procure the sending of:
8.2.1 any bulk email communications (spam) or unsolicited promotional email communications in breach of the Data Protection Legislation;
8.2.2 any communications which are likely to harass, upset, embarrass, alarm or annoy any other person, or impersonate any person, or misrepresent the Customer’s identity or affiliation with any person or company;
8.2.3 any data or upload any material that contains Viruses.
8.3 The Customer acknowledges that it is solely responsible for putting place and adhering to the terms of a contract with a third party for the submission of email communications sent via the Platform, and the Company shall not be liable for any delays in sending communications or for any additional costs incurred by the Customer as a result of the Customer’s failure to comply with the terms of such contract or arrangement.
9.1 All amounts and fees stated or referred to in these Terms are payable in the currency specified in the Order Form and are non-refundable. The Subscription Fees are stated exclusive of value added taxes or other sales taxes which shall be added to the invoice amount at the appropriate rate. Talentis subscription fees will be billed automatically at the start of the monthly or annual period as applicable. These fees will auto-renew until the subscription has ended. You may cancel your subscription at any time as detailed in Clause 10.
9.2 The Subscription Fees will be charged at the then prevailing rate. Any changes to the Subscription Fees will be notified to the Customer with no less than 60 days’ notice.
You may give notice to cancel your full Subscription Fees at any time as per 14.2 or by reducing or cancelling the number of Authorised Users through the Services. The cancelation of an Authorised User will be effective from the end of the current subscription period. We do not refund unused portions of subscription fees or unused credits for any third-party services purchased through the Platform.
11.1 The Customer acknowledges and agrees that all Intellectual Property Rights in the Platform, the Services, the Documentation, aggregated Person Data and any Search Data results are owned by the Company and/or its licensors. Any and all enhancements or modifications to the same shall also be owned by the Company and/or its licensors. Save as set out in these Terms the Customer shall not acquire any rights or ownership of the Platform, the Services the Documentation or the Search Data.
11.2 The Company confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with these Terms.
11.3 The Company hereby grants to the Customer a limited licence to use selected Person Data contained within a connected Person profile for the purpose of its internal recruitment operations, business development or to provide executive or candidate search services to a client in accordance with the Privacy Information Notice and Data Protection Legislation.
11.4 The Customer warrants that it is the owner or licensor of all Customer Data input into the Platform or processed via the Services by the Customer and the Customer grants a licence to the Company to use and process the Customer Data in connection with the provision of the Platform and the Services. To the extent that the provision of any Services incorporates the use of any logos, branding or trademarks of Customer (or a client of the Customer) the Customer grants such licence to use the logos, branding or trademarks as required for the purpose of providing the Services set out in these Terms.
11.5 The Company shall defend the Customer against any claim that the Platform or the Services infringes any Intellectual Property Rights effective as of the Effective Date and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that the Company is given prompt notice of any such claim and given sole authority to defend or settle it and the Customer provides reasonable co-operation to the Company in the defence and settlement of such claim. In the defence or settlement of any claim, the Company may procure the right for the Customer to continue using the Platform or the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay any damages or costs to the Customer.
11.6 In no event shall the Company, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
11.6.1 modification of the Platform, the Services, any Search Data or the Documentation by anyone other than the Company; or
11.6.2 the Customer’s use of the Platform and/or the Services in a manner contrary to the instructions given to the Customer by the Company; or
11.6.3 the Customer’s continued use of the Platform or any Service after notice of the alleged or actual infringement from the Company or any appropriate authority.
11.7 Separate from the Customer Data the Customer may submit questions, comments, suggestions, ideas, original and creative materials or other information about the Company or Services. This feedback however submitted to the Company is confidential and will become the sole property of the Company. The Company will own exclusive rights, including without limitation, all intellectual property rights, in and to the feedback and will be entitled to the unrestricted use and dissemination of the feedback for any purpose, commercial or otherwise, without acknowledgement or compensation to you.
11.8 The foregoing states the Customer’s sole and exclusive rights and remedies, and the Company’s (including the Company’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any third party Intellectual Property Rights.
12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information shall not be deemed to include information that:
12.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
12.1.2 was in the other party’s lawful possession before the disclosure;
12.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
12.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
12.2 Subject to Clause12.4, 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 the Agreement.
12.3 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 these Terms.
12.4 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 12 it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
12.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
12.6 The Customer acknowledges that details of the Platform and the Services constitute the Company’s Confidential Information, and that any Person Data is confidential information of the Person.
12.7 The Company acknowledges that the Customer Data is the Confidential Information of the Customer.
12.8 Save that the Company may make a public statement identifying that the Customer is a customer of The Company, neither party shall make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
12.9 The provisions of this Clause 11 shall survive termination of the Agreement.
13.1 The Customer acknowledges that Talentis
13.2 Except as expressly and specifically provided in these Terms:
13.2.1 the Customer assumes sole responsibility for results obtained from the use of the Services, including but not limited to any Search Data, by the Customer (and any client to whom the results are provided by the Company where applicable) and for conclusions drawn from such use. The Company shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Company by the Customer in connection with the Services, or any actions taken by the Company at the Customer’s direction;
13.2.2 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
13.2.3 the Services and the Documentation are provided to the Customer on an “as is” basis.
13.3 Nothing in these Terms excludes the liability of either party for death or personal injury caused by negligence or for fraud or fraudulent misrepresentation.
13.4 Subject to Clause 13.1 and Clause 13.3:
13.4.1 The Company 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 this Agreement; and
13.4.2 The Company’s total aggregate liability in contract (including in respect of the indemnity at Clause 11.5), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
13.5 The Customer shall defend, indemnify and hold harmless the Company, its directors, employees and licensors, 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 Customers use of the Platform and Services, providing that the Company gives prompt notice to the Customer of the claim, co-operates with the Customer in the defence and settlement of the claim at the Customer’s expense.
14.1 The Agreement shall commence on the Effective Date and shall continue for the duration of the subscription. Should the Agreement become terminated then it will be considered Cancelled as per Clause 10.
14.2 Without affecting any other right or remedy available to it either party may terminate the Agreement on giving 30 days written notice to the other party.
14.3 Without affecting any other right or remedy available either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
14.3.1 the other party commits a material breach of any provision in these Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
14.3.2 the other party repeatedly breaches any provision in these Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Terms;
14.3.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or otherwise suspends or ceases or threatens to suspend of cease carrying on a substantial part of its business, or any event or proceedings are taken (in any jurisdiction) that has equivalent effect.
14.4 On termination of the Agreement for any reason:
14.4.1 all licences granted under the Agreement shall immediately terminate and the Customer shall immediately cease all use of the Platform and Services;
14.4.2 each party shall return and make no further use of any Documentation, equipment, property, and other items (and all copies of them) belonging to the other party;
14.4.3 on payment of all amounts due from the Customer under this Agreement the Company will supply the Customer with a copy of the Customer Data in electronic format for the appropriate charge;
14.4.4 the Company will delete or make unavailable from the Services all Customer Confidential Information;
14.4.5 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 the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
15.1 The Company shall be entitled to assume that the individual accepting these Terms and the contract on behalf of the Customer is duly authorized to bind the Customer.
15.2 The Company shall have no liability to the Customer under these Terms to the extent that it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, failure of a utility service or telecommunications network, act of God, war, riot, malicious damage, compliance with any law or governmental order, rule, regulation or direction.
15.4 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. The rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
15.5 If any provision (or part of a provision) of these Terms or the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force, and the provision shall be modified to the extent necessary to give effect to the commercial intention of the parties.
15.6 The Agreement 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.
15.7 Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms or the Order Form. Nothing in this Clause shall limit or exclude any liability for fraud.
15.8 The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
15.9 The Company 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 the Agreement.
15.10 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.
15.11 These Terms do not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) under the Contracts (Rights of Third Parties) Act 1999.
15.12 Any notice required to be given in accordance with these Terms shall be in writing, and delivered by hand or sent by pre-paid first-class post or recorded delivery post to the Company (at the address set out in these Terms) or to the Customer (at the address set out in the Order Form) or such other address as may have been notified by that party for such purposes. 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 notice delivered by first-class post shall be deemed to have been received on the third Business Day after posting. A notice may be sent by email to an address communicated by either party but shall only be deemed be validly received following receipt of a copy of the notice by either method stated above.
These Terms and the Agreement and any dispute or claim arising out of or in connection with them or the subject matter of these Terms, or the formation of this Agreement (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms, this Agreement or their subject matter or formation (including non-contractual disputes or claims).