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THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 11 (LIMITATION OF LIABILITY).

  1. Definitions

THE FOLLOWING DEFINITIONS AND RULES OF INTERPRETATION APPLY IN THESE CONDITIONS:

  1. Definitions:

Acceptable Use Policy means the Flydocs acceptable use policy set out at Schedule 2 or provided by Flydocs by any other means during the Term.

Add-on Product or Service means any additional Services or upgrades to Service Limits as may be purchased by the Customer during the Term including but not limited to additional storage, additional user licences, add-on modules and functionality from the Supplier’s flydocs Software Platform, training and consultancy.

Affiliate means with respect to any Party, any third party controlling, controlled by, or under common control with such Party. For purposes of this definition, “control” of a Party or third party means the possession, directly or indirectly, of the power to direct the management and policies of such Party or third party, whether through the ownership of voting securities, contract, or otherwise.

Business Day means any day that is not a Saturday or Sunday or a statutory UK bank holiday.

Charges the charges payable by the Customer for the supply of the Services in accordance with clause 5 (Charges and Payment).

Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures as defined in the Data Protection Legislation.

Conditions these terms and conditions together with any and all schedules and appendices hereto, as amended from time to time in accordance with clause 16.5

Confidential Information means any information of a confidential nature which shall include without limitation the terms of this Contract, any and all information relating to a Party (including without limitation its information systems, development, data storage and retrieval and support services, business affairs or plans, products or services, know-how, technical information, processes, suppliers, service providers, actual and/or prospective customers and Customers), any other information that is marked confidential or proprietary however conveyed or obtained (in all cases whether before or after the date of this Contract) and whether disclosed orally or in recorded form in whatsoever medium created or held (whether now or hereinafter invented) and in the case of the Customer, confidential information shall include without limitation any information relating to the Customer’s employees or workers, customers, Customers, suppliers, products and services. 

Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures as defined in the Data Protection Legislation.

Customer the person or firm who purchases Services from the Supplier as set out in the Order.

Customer Data means all data (including personal data of the types set out at clause 9.2.5) provided by or on behalf of the Customer or (including as part of any database) and/or, recorded, compiled, purchased, created or otherwise processed by Supplier on behalf of the Customer or otherwise pursuant to this Contract.

Customer Responsibilities means the responsibilities of the Customer as set out in this Contract set out in clause 4.

Data Protection Legislation means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

Effective Date means the date this Contract is last signed by a Party.

End Users means users of the Customer’s Services account. End Users may include Customer’s and its Affiliate’s employees and consultants.

End User Account means a Flydocs-hosted account established by the Customer through the Services, limited to the number of user licences set out in the Order.

Flydocs means the Supplier.

flydrive Software means the Supplier’s flydrive software and all subsequent developments, enhancements, amendment, modifications and updates to or new versions of such software as may be developed, created and/or installed under this Contract.

GDPR means General Data Protection Regulation ((EU) 2016/679).

Initial Services Term means the term for the applicable Services beginning on the Effective Date and continuing for the duration set forth in the Order.

Intellectual Property Rights patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, 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.

Order means the Customer’s order for Services as set out in the Customer’s order form.

Renewal Term means, unless otherwise agreed to in writing by the Parties, the twelve-month renewal term following either the Initial Services Term, or a previous Renewal Term. Renewal Terms are set forth in the Order.

Services means the services described in the Order, including the flydrive Software and Add-on Products and Services, which are to be provided by the Supplier.

Services Limits means storage, End User Account licences or any other limits that the Supplier may place on the Customer’s use of the Services as described in the Order.

Services Term means the Initial Services Term and all Renewal Terms for the applicable Services.

Specification means the flydrive Software specifications set out in Annex 1 of the Order.

Stored Data means the documents and data uploaded to the flydrive Software by the Customer or its End Users.   

Supplier GEN2 SYSTEMS LIMITED, registered in England and Wales with company number 06403282, trading as flydocs.

Supplier Background Material means the general knowledge, know-how (including processes, methodologies, ideas, concepts, techniques and other tools that are of generic application to the business of the Supplier), and skill used, acquired or developed by the Supplier in the course of this Contract and any and all Intellectual Property Rights therein and any other documents, information or materials of generic application to the Supplier’s business and derivatives thereof and any materials created prior to the performance of the Services.

Supplier Materials means all information and materials including advice, data, letters, reports, presentations, opinions and the Supplier’s tender responses provided to the Customer by or on behalf of the Supplier, any of the Supplier’s websites, being any websites or online portals through which the Supplier may perform the Services, and any and all other work product the Supplier prepares or develops in providing the Services including Supplier Background Material but excluding Customer Data.

Taxes and Duties means all present and future taxes and/or duties including but not limited to; value added tax, goods and services tax, withholding taxes, sales tax, use tax or any other similar tax, customs duties, tariff, imposts, levies, deductions, fee or assessment including the amount of interest and penalties in connection herewith and/or other charges as may apply.

Term means the term of the Contract, which will begin on the Effective Date and continue until the earlier of: (i) the end of all applicable Services Terms; or (ii) the Contract is terminated as set forth herein.

Third Party Processor means the third-party processor identified in Schedule 1.

UK Data Protection Legislation means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

  1. Interpretation:
    1. This Contract shall be binding on the parties, their successors and assigns.
    1. If and to the extent of any conflict or inconsistency between the main body of this Contract and any provision in any Schedule, the provision of the main body of this Contract shall take precedence.
  • Services and Use
    • The Contract governs access to and use of the flydrive Software and any and all Add-on Products and Services purchased by the Customer under an Order.
    • The Customer and its End Users may access and use the Services in accordance with the Contract.
    • With effect from the Effective Date and subject to and in accordance with these Conditions, the Supplier grants to the Customer a non-exclusive, personal, non-transferable, worldwide right to access the flydrive Software and use the flydrive Software and to permit use by the Customer’s End Users during the Term.
    • Schedule 3.
  • Responsibilities
    • The Customer shall:
      • ensure that the terms of the Order are complete and accurate;
      • promptly provide aircraft, asset data and user data as may be required in the setup of the flydrive Software;
      • co-operate with the Supplier in all matters relating to the Services;
      • prevent unauthorised use of the flydrive Software by its End Users and terminate any unauthorised use of or access to the Services;
      • promptly notify the Supplier of any unauthorised use of or access to the Services;
      • procure that End User Accounts are only provisioned, registered and used by a single End User; and
      • not permit any third party to access the flydrive Software without the Supplier’s prior written consent.
    • The Customer and its End Users will comply with the Acceptable Use Policy at all times during the Term.
    • The Customer will not: (a) sell, resell or lease the Services or Software; (b) use the Services or Software for activities where use or failure of the Services or Software could lead to physical damage, death or personal injury; (c) reverse engineer the Services or Software, or attempt or assist anyone else to do so, unless this restriction is prohibited by law; (d) use the Services or Software, including the export or re-export of Customer Data, in violation of any laws; or (e) violate or circumvent any Service Limits of the Services or otherwise configure the Services to avoid Service Limits.
    • The Customer and its End Users will comply with laws and regulations applicable to the Customer’s use of the Services.
    • The Customer is responsible for ensuring that that Services are appropriate for its purposes, considering the nature of the Customer Data.
    • The Customer is responsible for the use of the Services by its End Users.
    • The Customer shall not take any action that could cause the Supplier or the Services to violate any Data Protection Legislation or any applicable anti-bribery, anti-corruption, or anti-money laundering law.
    • If the Customer uses any third party service or applications with the Services the Supplier shall not be responsible for any act or omission of the third-party and the Supplier does not warrant or support any service provided by the third-party.
    • The Customer shall pay the Charges for the flydrive Software and Services as specified in the Order in accordance with the Contract.
    • If the Customer has been given a free of charge trial period Charges shall being on the payment start date set out in the Order.
    • If the Customer purchases Add-on Services and Products during the Term these shall be charged from the next monthly invoice.
    • All invoices shall be issued and paid in the currency set out in the Order and shall include the following information: Company name; Unique invoice reference; Date of invoice; Currency; Amount; Description of Services; and Purchase Order number (if applicable).
    • The Customer shall pay each invoice submitted by the Supplier:
      • within 30 days of the date of the invoice; and
    • in full and in cleared funds to a bank account nominated in writing by the Supplier, and
    • time for payment shall be of the essence of the Contract.
    • If the Customer disputes in good faith any portion of an invoice it may withhold payment in respect of such disputed amount until the dispute is resolved, provided it pays the undisputed portion on the date specified in this clause 5. Once the dispute is resolved, the Customer shall pay the invoice within 15 days of the date the dispute was resolved.
    • Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date any undisputed amount the Supplier may suspend all Services until payment has been made in full.
    • All sums due to either party under this Contract:
    • are expressed exclusive of VAT thereon, if any, which shall be charged in addition thereto in accordance with the relevant regulations in force at the time of making the relevant taxable supply and shall be payable by the paying party only against receipt from the other of a valid VAT invoice in respect thereof; and
    • shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
    • if any withholding taxes or Taxes and Duties are required to be imposed by the fiscal or governmental authorities, the Customer shall gross up the payment by paying an additional amount such that after the deduction of all amounts required to be withheld, the net amount received by the Company will equal the amount that the Company would have received if such withholding taxes or Taxes and Duties had not been required.
    • All sums payable to the Supplier under this Contract for services provided up to the date of termination shall become due immediately on its termination, despite any other provision. This clause is without prejudice to any right to claim for interest under the law, or any such right under this Contract.
  • Intellectual Property Rights
    • As part of the performance of the Services under this Contract the Supplier may be granted access to Customer Data.
      • ; and
      • on an anonymized basis only, for use in performing analytics to develop and improve the performance of the Supplier’s software and data driven services (together, the Permitted Uses). The Supplier is not permitted without the prior written consent of the Customer to make any copy of any Customer Data, except as required for the Permitted Uses. The Supplier agrees not to remove any copyright notices from such Customer Data.
    • All Intellectual Property Rights in or arising out of or in connection with the Services (other than those Intellectual Property Rights referred to in clause 6.2) shall be owned by the Supplier or its licensors including, without limitation, the flydrive Software and the Supplier Materials and the Supplier Background Material. Nothing in this Contract shall transfer such Intellectual Property Rights to the Customer or any other party or fetter the Supplier’s ability to use such Intellectual Property internally or in providing services to any of its Customers.
    • With effect from the Effective Date, the Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a non-exclusive, personal, non-transferable and non-sub-licensable licence for the Term to use the flydrive Software and the Supplier Materials solely for the purpose of receiving of receiving the benefit of the Services provided under this Contract. This licence shall terminate automatically upon notice from the Supplier or at the termination or expiry of the Services or this Contract. Accordingly the flydrive Software may contain an automatic expiry mechanism. 
    • The Customer shall not:
      • except as expressly permitted under this Contract and to the extent required to be permitted by law, create derivative works based, on reproduce, copy, modify, translate, reverse engineer, disassemble, decompile, or otherwise attempt or knowingly permit others to attempt to discover, the source code of the flydrive Software or Supplier Materials in whole or in part (as applicable);
      • market, sell, distribute, assign, sub-licence or otherwise grant rights in the flydrive Software or Supplier Materials to any third party;
      • obfuscate, remove or alter any of the internet links, disclaimers, copyright or other proprietary legends that are in the flydrive Software or Supplier Materials; or
    • use the flydrive Software in any manner for purposes of designing or developing competing software, portals or systems.
  • Customer Data
    • The Supplier agrees that the Customer shall own any and all Customer Data.
    • The Supplier shall keep all Customer Data in its possession in good condition.
    • The Supplier shall not disclose, share, transfer, sell, assign, lease or otherwise dispose of any Customer Data other than as expressly permitted by this Contract or with the Customer’s prior written consent.
    • Each party (the Receiving Party) will keep in confidence all Confidential Information disclosed to it by the other party (the Disclosing Party). The Receiving Party will and will procure that such of its directors, employees, agents, servants, professional advisers and sub-contractors who have access to Confidential Information pursuant to this clause will:
      • treat and maintain as confidential all Confidential Information by taking the same security measures and using the same degree of care as those which the Receiving Party applies to its own confidential information and which it warrants as providing adequate protection against any unauthorised disclosure, copying or use (but shall in any event use all reasonable endeavours to keep the Confidential Information confidential);
      • not disclose the Confidential Information to any other person other than with the prior written consent of the Disclosing Party or in accordance with this clause; and
      • not use the Confidential Information for any purpose other than the performance of its obligations under this Contract.
    • During the Term, the Receiving Party may disclose the Confidential Information solely to its directors, employees, agents, servants, professional advisers and sub-contractors (the Recipient) to the extent that it is necessary for the purposes of this Contract.
    • The Receiving Party shall procure that each Recipient is made aware of and complies with all the Receiving Party’s obligations of confidentiality under this Contract as if the Recipient was a party to this Contract.
    • 8 shall not apply to information that the Receiving Party can demonstrate:
      • was previously known by the Receiving Party without any obligation to hold it in confidence;
      • is independently developed by the Receiving Party without the use of Confidential Information of the Disclosing Party;
      • is or becomes available to the public through no breach of this Contract by the Receiving Party;
      • is approved for release by written authorisation of the Disclosing Party, but only to the extent of and subject to such conditions as may be imposed in such written authorisation;
      • is required to be disclosed by law, regulations or the listing requirements of an internationally recognised electronic stock trading system to be disclosed;
      • is required to be disclosed by valid order of a court or other governmental body, but only to the extent of and for the purposes of such order; provided, however, that the Receiving Party must use its commercially reasonable best efforts to notify the Disclosing Party in advance of such required disclosure and assist and permit the Disclosing Party to oppose or restrict such disclosure; or
      • is lawfully received, without restriction, against disclosure, from a third party free to disclose such information.
      • Upon written request by the Disclosing Party, the Receiving Party will destroy or return (as instructed by the Disclosing Party), as far as technically practicable, all Confidential Information identified for such return or destruction by the Disclosing Party within 20 days of the date of such request.
    • Notwithstanding the provisions of clause 8.4,the Supplier will be entitled to retain a copy of certain Customer Data only for professional record keeping purposes in accordance with the confidentiality terms set out in this clause and such right shall continue after expiry or termination of this Contract for whatever reason.
    • The obligations of confidence under this clause 8 shall survive expiry or termination of this Contract howsoever arising.
    • 9 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this clause 9, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
    • The parties acknowledge that for the purposes of the Data Protection Legislation:
      • the Customer is the controller and the Supplier is the processor.
      • the subject matter of the processing is the provision of Services to the Customer that involves the processing of the types of personal data set out at clause 9.2.5 and applies exclusively to the processing of personal data that is subject to EU Data Protection Laws.
      • the nature of the processing consists of collecting, organisation, use, storage, sorting, recording, transferring, restricting and retrieving of personal data and the purpose of the processing is to provide the Services, perform operational tasks, troubleshoot, to allow the Customer full use of the functionality of the Software and to fulfil the contractual obligations for the provision of Services by the Supplier to the Customer under the Contract;
      • categories of data subjects are the Customer’s employees, consultants, contractors, suppliers and application users; and
        •  Identity data including first name, last name, username, job title;
        • Contact data including email address and telephone number;
        • Technical data including IP address, login data, browser type and version, time zone setting and location, operating system; and
        • Profile data including username, feedback, and survey responses.
    • Unless expressly agreed otherwise, no types of personal data other than those set out at clause 9.2.5 shall be processed under this Contract including but not limited to special categories of personal data as referred to in Article 9(1) of the GDPR and the Customer shall hold harmless and indemnify the Supplier for any loss, damage, claims, liabilities, fees, costs and expenses arising out of any claim in relation to such personal data.
    • In case the Customer wishes to store personal data not set out at clause 9.2.5 in the flydrive Software, the Parties may agree on supplemental terms in a data processing agreement at the Supplier’s sole discretion.
    • The Supplier shall have no obligation to provide and shall have the right to discontinue with immediate effect the provision of the flydrive Software if and to the extent the Customer’s use of the flydrive Software for processing of personal data is incompatible with the flydrive Software.
    • Without prejudice to the generality of clause 9.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.
    • Without prejudice to the generality of clause 9.1, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:
      • process that personal data only on the documented written instructions of the Customer unless the Supplier is required by Applicable Laws to otherwise process that personal data. Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
      • ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
      • ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
      • not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
      • the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
      • the data subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
      • the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
      • the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
      • assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
      • notify the Customer without undue delay on becoming aware of a personal data breach;
      • at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the personal data; and
      • maintain complete and accurate records and information to demonstrate its compliance with this clause 9 and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
    • The Customer consents to the Supplier appointing the Third Party Processor as a third-party processor of personal data under the Contract. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business and in either case which the Supplier undertakes reflects and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause 9.
    • Either party may, at any time on not less than 30 days’ notice, revise this clause 9 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
  1. Warranties
    1. The Supplier warrants, represents and undertakes:
    1. that the flydrive Software is proprietary to the Supplier or its licensors and that it has the right to license all rights in and to the flydrive Software to the Customer as provided in this Contract;
    1. there is not, as far as the Supplier is aware, as at the Effective Date any litigation or other claim pending or threatened, nor any fact which may be the basis of any claim, in relation to the flydrive Software or any part of it and Supplier has not taken any action or failed to take any action which would interfere with the Customer’s rights under this Contract;
    1. it has the legal right and full power, capacity and authority to execute and deliver and to exercise its rights and perform its obligations under this Contract; and
    1. .
    1. The Supplier is not responsible for the suitability of the flydrive Software to the Customer’s own systems.
    1. Except as expressly and specifically provided in this Contract 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 Contract.
    1. Subject to the limitations at clause 11, the Supplier shall defend, hold harmless and indemnify the Customer against all loss, damage, claims, liabilities, fees, costs and expenses arising out of any claim that the flydrive Software infringes the Intellectual Property Rights of a third party (“Claim”) provide that:
    1. the Supplier is notified promptly in writing of any such Claim;
    1. the Customer makes no admission or settlement of such Claim without the Supplier’s prior written consent;
    1. the Supplier has sole control of the defence and any negotiations for compromise or settlement of such Claim; and
    1. the Customer provides, at the Supplier’s expense, such assistance as the Supplier reasonably requires.
    1. replace all or part of the potentially infringing Software with functionally equivalent non-infringing Software;
    1. modify the flydrive Software as necessary to avoid such claim, provided that the flydrive Software (as amended) functions in substantially the same way as the flydrive Software before modification; and/or
    1. procure for the Customer a licence to continue using the flydrive Software (or any part thereof).
    1. If the Supplier is unable to comply with clause 10.13, and without prejudice to any other rights and remedies, the Customer may terminate this Contract.
    1. The Supplier will have no liability for any claim of Intellectual Property Rights infringement:
    1. caused solely by the Customer’s use of the flydrive Software in combination with any other third party software; or
    1. resulting solely by the Customer’s or its’ End Users violation of the Acceptable Use Policy; or
    1. resulting solely from any unauthorised modification of the flydrive Software made by the Customer or a combination of the flydrive Software with any third party software or hardware.
    1. 11.1 THE RESTRICTIONS ON LIABILITY IN THIS CLAUSE 11 APPLY TO EVERY LIABILITY ARISING UNDER OR IN CONNECTION WITH THE CONTRACT INCLUDING LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, RESTITUTION OR OTHERWISE.
    1. 11.7 TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR THE SUPPLIER OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS, NEITHER CUSTOMER NOR THE SUPPLIER AND ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS WILL BE LIABLE UNDER THIS CONTRACT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
    1. 11, THE SUPPLIER TOTAL AGGREGATE LIABILITY TO THE CUSTOMER SHALL NOT EXCEED THE LESSER OF £100,000 (ONE HUNDRED THOUSAND BRITISH POUNDS) OR THE AMOUNT PAID BY CUSTOMER TO THE SUPPLIER HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
  1. NOTHING IN THIS CONTRACT SHALL BE TAKEN AS IN ANY WAY REDUCING OR AFFECTING A GENERAL DUTY TO MITIGATE LOSS SUFFERED BY A PARTY.
  1. Term
    1. The Contract shall begin on the Effective Date and shall remain in effect for the Term.
    1. The Supplier shall deliver the Services to the Customer for the Services Term.
    1. Any additional End User Accounts or Add-on Products and Services purchased during any Services Term will have a prorated term ending on the last day of the pre-existing Services Term.
    1. Unless otherwise specified in the Order, following the Initial Services Term or a Renewal Term, the licence for the Services will automatically renew for a Renewal Term as set out in the Order, unless either Party gives the other written notice of termination at least thirty days prior to the expiration of the then-current Services Term.
  1. Termination
    1. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
      1. the other party passing a resolution for its winding up, a court of competent jurisdiction making an order for the other party’s winding up or the presentation of a petition for the other party’s winding up which is not dismissed within 7 days;
      1. the other party having an order made for the appointment of an administrator to manage its affairs or business and property or documents are filed with a court of competent jurisdiction for the appointment of an administrator or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986;
    1. the other party has a receiver appointed over its assets or undertaking or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other Party or if any other person takes possession of or sells the other party’s assets;
      1. the other party makes any voluntary arrangement or composition with its creditors generally or applies to a court of competent jurisdiction for protection from its creditors in any way;
      1. if any situation analogous to any of those described at clauses 13.1.1 to 13.2.2 above occurs in relation to the other party under the law of any jurisdiction.
    1. Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any undisputed amount due under the Contract within 60 Business Days of being notified by the Supplier of such failure.
    1. Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer’s End Users, employees, agents or third party contractors violate the Acceptable Use Policy.
    1. The Customer may terminate this Contract for convenience at any time by giving not less than 30 days written notice to the Supplier.
  1. Consequences of Termination
    1. On termination of the Contract:
    1. the rights and licences granted by the Supplier to the Customer will cease immediately;
    1. the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices, interest and all other sums due and payable to the Supplier under this Contract and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer within 30 days of receipt;
    1. all rights and obligations of the parties under this Contract shall automatically terminate except for any provisions which expressly or by implication are intended to come into or continue in force on or after such expiration or termination, all of which shall survive termination or expiry of this Contract for any reason whatsoever;
    1. each Party shall cease to use all other documents, materials and Confidential Information of the other including the Customer Data, and the Supplier Materials and at the direction of the other Party either deliver up or destroy all copies of the same (in both hard and soft copies) in its power, possession or control;
    1. the Supplier will purge the Customer’s account and its End User Accounts and Stored Data in the flydrive Software on receipt of instruction to do so from an authorised representative of the Customer.
    1. The Customer may request reasonable additional time to export its Stored Data, provided that the Supplier may charge the Customer for this extended access based on the Supplier’s standard fees.
    1. The Supplier will purge the Customer’s flydrive Software portal and its End User Accounts and Stored Data in it.
    1. Termination or expiration of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
    1. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
    1. In the event of a dispute between the Parties relating to or arising out of this Contract (Dispute), the Parties will first attempt to resolve such dispute amicably by negotiation, consultation and cooperation between themselves. In the event a Dispute is not resolved on an informal basis within 30 days of the written notice of a Dispute, any Party may, by written notice to the other, have such Dispute referred to the Executive Officers (or their designees) who will attempt to resolve such Dispute by negotiation, consultation and cooperation for a 30 day period following receipt of such written notice.
    1. Both parties shall use their reasonable endeavours which may include, without limitation, the preparation and submission of statements of fact or position, to reach an amicable resolution in accordance with the procedure set out in this clause 15.
    1. Neither party may initiate any legal action until the procedure described in this clause 15 has been completed, except where a party has reasonable cause to do so, including the avoidance of damage to its business or assets or the protection or preservation of any right(s) of action it may have.
    1. Nothing in this clause 15 shall prevent or delay either party at any time instituting against the other any application for emergency relief (including injunctions) or any proceedings to protect that party’s intellectual property and/ or other propriety rights.
  1. General
    1. s. The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
    1. . The Contract constitutes the entire agreement between the parties and supersedes, cancels and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter, notwithstanding the terms of any previous agreement or arrangement expressed to survive termination. Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract. Nothing in this clause shall limit or exclude any liability for fraud.
    1. Publicity. The Supplier shall not disclose that the Customer is its customer for any purpose including advertising, marketing or publicity without the Customer’s prior written consent, such consent not to be unreasonably withheld
    1. 16.4 Notice. Any notice required to be given by one party to this Contract to the other will be in writing and will be served by hand delivery or by airmail or by email to (in the case of a letter) the designated representative at the address as set out in the Order or (in the case of email) to the designated representative at the email address set out in the Order or such other person, address, email address or fax number as the relevant party may from time to time notify to the other party. All notices are deemed given when received.
    1. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
    1. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
      1. If any provision or part-provision of the Contract 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 shall not affect the validity and enforceability of the rest of the Contract.
      1. . Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
      1. Nothing in this Contract shall be construed to create between the parties, a partnership, joint venture, employment relationship, franchise or agency. Neither party is intended to have, and neither of them shall represent to any other person that it has any power, right or authority to bind the other, or to assume, or to create any obligation or responsibility, express or implied, on behalf of the other party except as expressly provided in this Contract or as otherwise permitted in writing.
      1. This Contract may be entered into in any number of identical counterparts, all of which taken together shall constitute one and the same instrument.
      1. . Except for payment obligations, neither the Supplier nor Customer will be liable for inadequate performance to the extent it was caused by (but not limited to) acts, events, omissions or non-events beyond its reasonable control, acts of God, riots, pandemics, war, acts of terrorism, fire, flood, storm or earthquake and any disaster, any labour or trade dispute, strikes, industrial action or lockouts, non-performance by suppliers or subcontractors and interruption or failure of any utility service. The Supplier will endeavour to minimise the effects of any of these events and to perform its obligations that are not affected.
      1. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
      1. Each party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.